G SUKUMARY Vs. M LYDYA ALIAS LAILA

JUDGEMENT

(1.) This appeal was preferred by one G. Sukumary who was the defendant in O.S. 3 of 1998 before the Ist Addl. District Judge, Trivandrum against the judgment and decree in the above suit. Respondents herein as plaintiffs had filed O.P. (L.A.) 173/86 on the file of the District Court under Section 276 of the Indian Succession Act for letters of administration with the Will annexed in respect of the estate of deceased K.P. Panicker alias K. Ponnan Panicker. Ponnan Panicker had executed the Will on 19-1-1983 which came into effect on the death of the testator on 27-10-1986. counter petitioner opposed the O.P. contending that late Ponnan Panicker had not executed any Will and that the Will produced was a fabricated one and vitiated by fraud and collusion. Since the original petition was opposed the same was converted into a suit and numbered as O.S. 3 of 1988. Following issues were framed in the suit.

(2.) Aggrieved by the same defendant had preferred this appeal. While the appeal was pending before this Court appellant died on 1-5-1996. CMP. 2370/96 was filed by six petitioners who are children of the brother of the original appellant. Their father had pre-deceased the appellant. Appellant had no sisters. Petitioners submitted that they are the only legal heirs of the deceased appellant and therefore they are entitled to be impleaded as additional appellants 2 to 7 in the appeal. CMP. 3151 and 4114 of 1996 were also filed by three strangers. This court dismissed those two petitions, however, allowed CMP. 2370/96 with a rider that they will have to establish independently their right to succeed to any property belonging to the deceased appellant. Plaintiffs who are respondents herein also filed objection with regard to the impleadment of the petitioners in CMP. 3151/96 contending that they have no locus standi. Impleadment was however, allowed subject to the final decision in the appeal. The appeal then came up for hearing before this Court on 11th September 2001 and this Court felt that interests of justice demands that an opportunity be given to the appellants 2 to 7 to cross-examine PW1 and other witnesses. Consequently an order was passed to that effect on 11-9-2001. On the basis of that order PW-1, PW-2, PW-3 and PW-5 were recalled and appellants 2 to 7 were permitted to cross-examine them. Additional 6th appellant was also examined as DW-1 and evidence recorded.

(3.) Sri. K.T. Sankaran, Advocate appeared for appellants 2 to 7. Counsel attacked the findings of the Court below on various grounds. Counsel submitted the Will alleged to have been executed by Ponnan Panicker on 19-1-1983 was vitiated by undue influence and fraud. Counsel submitted Ponnan Panicker was not having any sound disposing power at the time of executing the Will. The Will was concocted and the petition was filed to appropriate the properties left behind by late Ponnan Panicker. It was contended that Sukumary was the legally wedded wife of Ponnan Panicker and there is no reason to disinherit her. Appellants 2 to 7 being the only legal heirs of Sukumari are entitled to inherit the properties of late Sukumari. Counsel also pointed out various suspicious circumstance surrounding execution of the Will.