DEVASSIA MATHEW Vs. MATHAI

JUDGEMENT

(1.) First defendant in O.S. 5 of 1981 of the District Court, Kottayam is the appellant. The first respondent plaintiff filed O.P. 55 of 1980 under S.278 of the Indian Succession Act for the grant of Letters of Administration with the copy of the will annexed. As the petition became contentious it was converted into a suit.

(2.) The case of the plaintiff is that deceased Augusthy Thommen executed Ext.Al will on 24-12-1114 M.E. in the presence of attestors, that he died on 8-1-1115 M.E., that the will was subsequently registered in 1118 M.E. and that the plaintiff should be granted Letters of Administration with the copy of the will annexed. First defendant disputed the genuineness of the will. The District Judge granted Letters of Administration in favour of the plaintiff

(3.) Ext.Al will was attested by four witnesses. Except Augusthy Antony, the first witness in Ext.Al other attesting witnesses are not alive. P.W.1 stated that the witness Augusthy Antony is aged 90 years, that he is unable to walk and that his power of speech has been impaired. Twice summons were taken to the witness. On the first occasion the summons was returned stating that the witness was not residing permanently in the place shown in the summons. On the second time the summons was returned stating that the witness had gone somewhere. Thus, it can be seen that the plaintiff had taken steps to examine the sole surviving witness. Contention of the defendant is that non compliance of the mandatory requirements of S.68 of the Evidence Act disentitles the plaintiff to any relief in the suit.