SILVY GEORGE Vs. ANNA JOSEPH

JUDGEMENT

(1.) This appeal unfurls certain interesting questions regarding the proof of genuineness of a Will, when none of the attesting witnesses are alive, and even if it is proved, whether the legacy in favour of one of the legatees to the Will lapses and the same reverts back to the estate of the testator, when such legatee predeceases the testator Aggrieved by the dismissal of a suit for partition filed as O.S. No. 453/2006 of the Principal Subordinate Judge's Court, Ernakulam through judgment and decree dated 31/03/2008, the plaintiff has come up in appeal.

(2.) The case of the appellant/plaintiff is that plaint 'A' schedule property was the property acquired by late Vareed and plaint 'B' schedule properties were the properties acquired by late Chummar. Vareed executed Ext. B1 Will registered as document No. 7 of 1095 ME of the Ernakulam Sub Registry, thereby bequeathing his properties in favour of his only two sons namely, Thummi and Chummar. Thummi died in the year 1933 and Chummar died in the year 1967. Chummar died issueless. Thummi had 8 children, namely, Augustine, Joseph, Mariyam alias Kochu Mariyam, Monica, Plamena, Elo, Kochanno and Thressia, in his first marriage. After the death of his first wife, Thummi married one Rosa in whom he had a son namely, Varuthu alias George and three daughters, namely, Prestina, Rosakutty and Mary. According to the appellant, respondents 1 to 62 and the appellant are the legal heirs of the children of Thummi.

(3.) It is the case of the appellant that Thummi, in his capacity as one of the two sons of Vareed, was entitled to one half share in 'A' schedule property. As Thummi had 12 children, the appellant and respondents 53 to 60, who are the children of Rosakutty, are entitled to get 1/12 share in the said one half share of Thummi in plaint 'A' schedule property.