C G DAVID THARAKAN Vs. LILY JACOB

JUDGEMENT

(1.) Plaintiff, as petitioner, moved O.P.5699/1988 for Letters of Administration with Will dated 18-7-1974, executed by deceased Smt. Martha David Tharakan attached to it. Legatees under the Will and all the legal heirs left behind by the deceased were made respondents 1 to 10 in that petition. When notice was issued to the respondents, 4th respondent, one of the daughters of the deceased, filed caveat opposing the grant of Letters of Administration. She also filed affidavit in support of her contentions. Since affidavit in support of the caveat has been filed and notice of the same was given to the petitioner in the Original Petition, the proceedings have been ordered to be numbered as a suit, as provided by R.26 of the Rules under the Indian Succession Act, 1925, Appendix XII to the Civil Rules of Practice, Kerala. Petitioner in the Original Petition is the plaintiff and the 4th respondent, caveator, the defendant.

(2.) Material averments made by the plaintiff are to the following effect. Smt. Martha David Tharakan had a fixed place of abode at Ernakulam. Her properties are situated in Ernakulam and Maradu Villages of Kanayannur Taluk, Ernakulam District and at Bangalore in Karnataka State. She passed away on 5-6-1982. She had executed her last Will and Testament on 18-7-1974. It was drawn up, signed and executed by her by complying with all the formalities contemplated by the Indian Succession Act. It was prepared in triplicate. Deceased signed all the three in the presence of two attestors, namely Advocate Sri. George C.P. Tharakan and Sri. C.I. Jim. Attestors saw testatrix signing the Will and testatrix in her turn witnessed the two attestors signing the same. Plaintiff is the son of the deceased and one among the legatees named in the Will. No application has been presented in any Court for probate of any of the Will of the deceased or for Letters of Administration with or without any Will annexed to it, in respect of the properties left behind by deceased Martha David Tharakan. subject to the condition that defendant should receive a sum of Rs.70,000/- in satisfaction of her share. According to the plaintiff, Mrs. Martha David Tharakan did not die intestate and that the Will executed by her in 1967 and 1974 govern the succession to her estate. At the time when Martha David Tharakan is alleged to have cancelled the Will, she was not having testamentary or even physical capacity and act of cancellation could not and would hot have been made by her at all. The application for Letters of Administration was filed in this Court, since it is required to have effect throughout India.

(3.) Smt. Martha David Tharakan had executed a Will on 9-4-1967 by complying with all the requirements of law. It was inner own handwriting. She signed the same in the presence of two attestors, namely Advocate Sri. E.V. Mathew, her own brother, and Dr. Chacko George, the son of her elder sister. These attestors had seen Smt. Martha David Tharakan signing the Will and she saw the attestors affixing their signatures as attestors. There was a Codicil attached to that Will. It was executed on 31-7-1969. That was also executed by complying with all the provisions of law. Advocate Sri. E.V. Mathew and his wife Annamma Mathew were the attestors to that Codicil.