MARY, C.P. Vs. C.P. THOMAS

JUDGEMENT

(1.) THERE are four wills in this litiga­tion,Exts.D -9 and D -10 executed by a Christian by name Porinchu jointly with his wife Annamma,Ext D -9 on 21st June 1950 and Ext.D -10 on 23rd September 1952,and Exts.D -11 and D -12 executed by Porinchu alone after Annamma's death,Ext.D -11 on 12th January 1960 and Ext.D -12 on 5th January 1962.Porinchu had eight children,three daughters and five sons,and the property left by him was an extent of 26 cents of land with seven or eight buildings thereon.The second of the sons filed a suit for partition claiming that the property was acquired by the eldest son,now deceased,with the help of all the members of the family,so that the property was joint property and was liable to be partitioned among the children of Porinchu and Annamma equally.The fourth of the sons,the fifth defendant in the suit,filed an application for letters of administration of Ext.D -11;and the last on,the last of the children,the sixth defendant,filed another application for letters of administration of Ext.D -12.The District Judge held that Exts.D -9 and D -10 were mutual wills,of which Ext.D -10,being the last will,was the will to be adminis­tered;and Exts.D -11 and D -12,being wills executed by Porinchu alone after the death of Annamma,were void and ineffective since a mutual will could not be revoked by one of the testators after the demise of the other.In this view he passed a preliminary decree in the original suit on the basis of Ext.D -10 and dismissed the applications for letters of administration of Exts.D -11 and D -12.One fact may this stage;and that is that Porinchu executed Ext.D -26,an assignment in favour of the second defendant,the second of the daughters,on 20th May 1961 and executed a similar assignment,Ext.D -29,in favour of the third defendant,the third of the sons,on 9th January 1962.What remained after these two assignments was alone the subject -matter of Ext.D -12,the last will executed by Porinchu.A.S.No.123 of 1964 is by defendants 2 and 3 against the decree in the original suit;A.S.No.182 of 1964 is by the plaintiff against the same decree;A.S.No.124 of 1964 is by the sixth defendant against the dismissal of his appli­cation for letters of administration of Ext.D -12;and A.S.No.271 of 1964 is by the fifth defendant against the dismissal of his application for letters of administration of Ext.D -11.

(2.) ONE of the contentions raised before the lower court was that the property was acquired by the eldest son of Porinchu.We do not think that there is any substance in this contention,because at the time of the acquisition of the property the first son of Porinchu was just a boy.There is also evidence that he left the family house as early as 1115 and was living with his wife out­side the family.Therefore,he could not have contributed for the construction of the buildings either.The evidence further shows that he became seriously ill and was taken to the family house by Porinchu,where he died.There is also no indication,documentary or otherwise,that it was with the efforts of the first son that either the suit property was acquired or the buildings thereon were constructed.Therefore,this contention was rightly rejected by the District Judge.

(3.) THE next contention urged before us is that the property was acquired with the aid of funds advanced by Annamma also.A lease of the property was taken as early as 1101 in the name of Porinchu;and subsequently,there was an agreement between him and the landlord in 1107 for the sale of the property to Porinchu.However,that contract fell through.Still,in 1114 the property was sold by the landlord to Porinchu for a consideration of Rs.900,out of which a sum of Rs.400 was paid immediately and for the balance of Rs.500 a mortgage of the same property was also executed.Later on,Porinchu discharged the mortgage and paid off the vendor.How it is sought to establish that part of the consideration for the acquisition of the property came from Annamma is by relying on Ext.P -1,a letter written by the manager of the Dharmodayam Company,which indicates that Annamma had a kuri(chit)transaction with the Company,whereunder she drew a sum of Rs.625.Ext.D -7 is the receipt evidencing the discharge of the mortgage.Three pay­ments towards the discharge of the mortgage are recited in Ext.D -7;and one of them was on the date on which Annamma received the kuri amount from the Dharmodayam Company. On this ground it is argued that the payment towards the discharge of the mortgage on that day must have been made with Annamma's money received from the Dharmodayam Com­pany.Excepting the probability that the money might have come from Annamma,there is no other evidence to show any definite con­nection between Annamma's kuri amount and the discharge of the mortgage.Therefore,it may be too much to conclude on the basis of this evidence alone that part of the considera­tion for the acquisition of the suit property came from Annamma.