THAYAMMAL Vs. SIVARAMAN

JUDGEMENT

(1.) THIS is an appeal preferred by the Plaintiff in the case, against the lower Court's order disallowing her prayer to appoint a receiver to properly administer the cardamom estate involved in the suit pending final decision of the question of the genuineness of a Will dated 30 -7 -1951 under which the Plaintiff claims the right of immediate possession and enjoyment of the property. The cardamom estate in question which is a little over 108 acres in extent, and situated in the Devicolam Taluk, forms part of the assets left by one P.T. Dever of Periakulam in Madura District. His other assets are situated beyond the limits of the Travancore -Cochin State and within the District of Madura. The said P.T. Dever was an Advocate practising at Periakulam. He was ailing for some time and ultimately he died on 5 -9 -1951, leaving no issue, male or female. The Plaintiff and Defendant 2 are his two childless widows, the Plaintiff being the senior of the two. Defendant 1 is the nephew of Dever, the father of Defendant 1 being a cousin of Dever. There is yet Anr. near relation to Dever and he is one Vativel, brother of Dever.

(2.) THE Plaintiff's case is that her husband had executed four Wills in all, one superseding Anr. ; while, according to Defendant 1, Dever had executed only three Wills. The three Wills, the execution of which is not in dispute, are those which were executed and got registered on 3 -7 -1945, .9 -6 -1947 and 7 -6 -1951. The disputed Will is the one stated to have been executed by Dever on 30 -7 -1951, just a few weeks prior to his death. It was not registered during his lifetime. A few days after Dever's death, the Plaintiff produced this Will before the Sub -Registrar of Periakulam and applied to have it registered. Notice of that application was given1 to the present Defendants 1 and 2 and the other near relation of the deceased testator. Defendant 1 alone appeared in pursuance of such notice and contested the genuineness of the Will. He impeached it as a false and fabricated document.

(3.) IN the nature of the dispute between the contesting parties, the main question for decision in the suit is whether the original of Ex. A is a genuine document representing the lasts will and testament of deceased Dever executed by him in supersession of his previous Wills. That question can be properly decided only after the parties have adduced all their evidence and after a due consideration of all such evidence in the light of all the attendant circumstances and probabilities. No doubt in dealing with the application for the appointment of a receiver for the suit properties, the Court has to consider the 'bona fides' of the claim put forward by the Plaintiff and also the question whether there are circumstances made out to justify the appointment of a receiver. At the same time, the Court has to be very guarded in committing itself one way or the other on the main and the crucial question involved in the suit. Any commitment likely to leave impression of the main issue having been prejudged should be avoided.