KURIAN Vs. MARTHA

JUDGEMENT

(1.) The suit properties belonged to Kuriakose, the father of the plaintiff and the first defendant who died on Dhanu 7, 1121, and were bequeathed by him to the plaintiff by will, Ext. P-1 (a) dated Makaram 26, 1115, which he had deposited in a sealed cover Ext. P-1 with the District Registrar, Kottayam, under the provisions of the Travancore Registration Act, 1087. On his death the properties came into her possession, but the first defendant attempted to take possession by force; she sued in O. S.346 of 1121 for injunction to restrain him from doing so, and a receiver was appointed for the properties. The suit was ultimately dismissed. She then instituted the suit out of which this appeal arises for establishing: her title to the suit properties under the will and for the recovery of the same from the receiver who was impleaded as the second defendant or from the first defendant, if he has already got into possession from the receiver. The second defendant pleaded that he had already surrendered possession to the first defendant. The latter contended that Kuriakose had not executed any will, that even the will put forward had not been duly attested and that he is in present possession as the heir of his father, and he also set up independent title to items 2 and 4. The Subordinate Judge, Kottayam, gave a decree to the plaintiff allowing her to recover possession from the first defendant who has preferred this appeal.

(2.) The finding of the learned Judge that items 2 and 4 belonged to Kuriakose was not challenged at the hearing. Ext. P-1 (a) bears the date Makaram 26, 1115, and purports to he signed by Kuriakose on all the eight pages. On the same day it was presented to the District Registrar for deposit in a sealed cover. Pw. 2 who has married one of the sisters of the plaintiff and was present at the time Ext. P-1(a) was completed at the residence, accompanied Kuriakose to the office. There, both himself and Pw. 1 a document writer, identified Kuriakose before the District Registrar. On Ext. P-1 is the superscription that it is the cover of the will of Kuriakose. Both Pws. 1 and 2 have deposed that Kuriakose signed Ext. P-1, which was sealed and deposited with the District Registrar. On this evidence, which I see no reason to distrust, there can be no doubt that Ext. P-1(a) was executed by Kuriakose.

(3.) But the important question in this appeal is, whether the will has been executed and attested in accordance with law. It was contended for the first defendant that