THOTTAPLACKAL THOMMI ALIAS THOMAS Vs. THOTTAPLACKAL ROSA

JUDGEMENT

(1.) The appellant herein is the petitioner in O.P.No.82/89 on the file of the District Court, Thalassery. The said O.P. was filed under Section 277 of the Indian Succession Act for probate of a will alleged to be executed by late Joseph.T.A.father of the petitioner and respondents 6 and 7, who died on 4.3.1984 at Thottplackall Manipara. The first respondent is the wife of deceased Joseph and the 2nd respondent is the wife of late Mathai, one of the sons of late Joseph and respondents 3 to 5 are the children of Mathai. Sometime before the death of Jospeh, he executed a will bequeathing the petition schedule property to the petitioner. Before the will could be registered the appellant s father died. Late Joseph had clearly stated that he had provided for his other children sufficiently and it is his intention to give the petition schedule property to the petitioner. The will was executed voluntarily and it is his free will and testament. So the petitioner is entitled to grant of probate in respect of the will.

(2.) Respondents 2 to 7 filed a joint counter statement. They denied the execution of the will by late Joseph. The will produced by the petitioner is a concocted document and not genuine. At the time of execution of the alleged will late Joseph was 85 years old. During the relevant time he was mentally and physically infirm and he was not of sound mind. Late Joseph was hospitalized for sometime and since his condition was found to be hopeless, he was removed from the hospital to his own house. At the time of the alleged will Late Joseph was critically ill and not in a position to understand anything. The petitioner is not entitled to get probate of the will and it is liable to be dismissed.

(3.) On the side of the petitioner, PWs.1 to 3 were examined and Exts.A1 to A4 were marked. On the side of the respondents, RW1 was examined. The court below dismissed the petition, against which this appeal is preferred. The petitioner filed the petition for grant of probate of the will alleged to be executed by his father on 4.3.1984. During the pendency of the appeal, the appellant died and his legal representatives are now in the party array as additional appellants. There is no dispute with regard to the relationship between the parties. The petitioner, respondents 6 and 7 and deceased Mathai are the children of late Joseph and the first respondent is their mother. Respondents 3 to 5 are children of late Mathai, one of the sons of late Joseph. The respondents denied the execution of the will by late Joseph. According to them on the date of alleged execution of the will late Joseph was 85 years old and he was mentally and physically infirm. He was hospitalized for some days and since his condition was found to be hopeless, he was removed from the hospital to his own house. The will was alleged to be executed only on 3.3.1984 whereas the late Joseph died on 4.3.1984. Late Joseph was residing with the 2nd respondent, RW1. The case of the petitioner is that he came to know about the will after the death of his father. It was kept in a box and as per the will, the late father has bequeathed the petition schedule property to the petitioner since others were sufficiently provided.