THOMAS Vs. AUGUSTLY THOMAS

JUDGEMENT

(1.) One Alekutty Sebastian widow of Augusthy Sebastian presented a Will for registration before the Sub Registrar's Office, Kidangoor (Kottayam District) claiming that the said will was executed by her husband on 13-12-1975. Proceedings were started by the Sub Registrar and later that case was transferred to the Principal Sub Registrar's Office, Kottayam. On completion of the proceedings the will was registered. Thereafter the aforesaid Alekutty Sebastian filed an original petition in the District Court for issue of Letters of Administration. Since petition was contested by some of the opposite parties, it was numbered as an Original Suit. However, in the end, the District Court granted Letters of Administration with a copy of the Will annexed thereto in favour of Alekutty Sebastian. Later the first respondent herein filed an interlocutory application under S.263 of the Indian Succession Act (for short the Act) for revoking the grant of Letters of Administration. During the pendency of the said petition Alekutty Sebastian died, and her legal representatives were impleaded. The lower court by the impugned order revoked the grant of Letters of Administration.

(2.) First respondent contended that, though he resisted against registration of the Will before the Sub Registrar, he was prevailed upon by the deceased Alekutty Sebastian and others to withdraw from contest with the offer that his due share in the estate of deceased Augusthy Sebastian would be given. According to him it was for that reason that he did not contest the proceedings for grant of Letters of Administration. He also averred that when Alekutty Sebastian instituted another civil suit against him he realised that fraud was practised by her; so he has come forward with the present application alleging that Ext.A1 Will was not executed by Augusthy Sebastian, and that the same was concocted after the death of Augusthy Sebastian.

(3.) It should be noted that there is no allegation that fraud was practised on the court. The contention is that fraud was practised on the first respondent. The first respondent who was served with notice did not contest the proceedings instituted for grant of Letters of Administration. Ext. D1 proceedings before the Sub Registrar will show that, the first respondent testified before that authority that the will is genuine. It is important that he had no case to the effect that, there was defect in any of the proceedings before the Sub Registrar or in the court. The brothers of the first respondent though had contested the proceedings in the court initially they also withdrew their contentions. The aforesaid circumstances will reveal that, the parties inclusive of the first respondent, who had sufficient opportunity to contest the proceedings did not contest as the parties reached some kind of settlement.