A B PERIERA Vs. IVY PERIERA

JUDGEMENT

(1.) THE Judgment of the Court was delivered by chandrasekhara Menon, J.-- Mrs. Mary Anne Periera died on 29th March, 1965. Her son Mr. A. B. Periera, advocate filed O. P. No. 69 of 1976 in the District Court, Trivandrum for granting probate or letters of administration in respect of a Will executed by his mother on 17th October, 1947 which was alleged to be her last testament. Counter petitioners 1 to 3 in the said petition were Mrs. Mary Anne Periera's daughter and counter petitioners 4 and 5 were the widow and son of a deceased son, Dr. Joseph Pereira. Petitioner's right to get probate or letters of administration was challenged by counter petitioners 4 and 5, who, while admitting the execution of a Will by the deceased Mrs. Periera contended that she had revoked the same and executed another Will on 26th February, 1966 which was her last Will and testament wherein the legatee was Dr. Periera. THE major bequest was in favour of the lawyer son as per the Will of 1947. Mr. A. B. Periera's petition was subsequently converted into a regular suit numbered as o. S. No. 5 of 1977.

(2.) DEFENDANTS 4 and 5 in that suit, counter petitioners 4 and 5 in the O. P. , filed another original petition -- O. P. No. 119 of 1977 for grant of letters of administration in their favour on the basis of the Will of 26th February, 1966. There the first counter petitioner, Mr. A. B. Periera questioned the later Will was vitiated by fraud, undue influence and misrepresentation. His case was that the Will of 1966 was not executed by her mother of her own Will but it was got executed at the instance of his brother, the Doctor under whose influence she was at the time of the execution of the will. The testatrix was completely bed ridden at the time of its execution and she had been enfeebled by her long illness. In the circumstances, the Will cannot be considered to be a conscious or voluntary act on the part of the testatrix. This petition was also converted into an original suit and numbered as O. S. 1 of 1978. Since common questions arose for consideration in both the suits, they were tried together, evidence being recorded in O. S. 1 of 1978.

(3.) THAT Ext. B3 Will was executed by the mother is not disputed. No doubt, the original was not forthcoming, the appellant's case being that his brother, the Doctor being actually residing with his mother in the last days, would have taken possession of the same and his widow and son are not producing it now. There is no case that the said Will was vitiated by any suspicious circumstances, the only case of the contesting respondents being that it was revoked by the last Will, Ext. A1. Under Ext. B3 the appellant was almost the sole legatee with direction to pay certain amounts to one of the sisters. According to the respondents, the appellant's alliance with a certain mrs. Baker, his decision to marry her, a widow with nine children and whose former husband was a Muslim and his subsequent marriage with her made Mrs. Mary anne Periera bitter and turn against this son. At the time of the marriage, the appellant was 54 while Mrs. Baker was 62. No doubt, the respondents would urge that Mrs. Baker was a person of bad repute but we might here itself state that there is no worthwhile evidence with respect to that. Anyhow, the respondents would contend that it was disregarding the mother's stout opposition that the defendant contracted his marriage with Mrs. Baker. At the time of marriage and subsequently Dr. Joseph Periera was staying with his mother. This was so when the Will Ext. A1 was executed. PW 1 was the Sub Registrar who registered Ext. A1 Will. The Will was registered at the residence of the testatrix at trivandrum. It may also be noted here that the appellant has got a case that the testatrix could not see at the time of the alleged execution of Ext. A1 as she was suffering from cataract which is not admitted by the contesting respondents.