TRESA XAVIER Vs. MARY SIMON

JUDGEMENT

(1.) This Regular First Appeal has been filed by the plaintiff, whose prayer to grant probate for the Will allegedly executed by her husband's brother was rejected by the District Court.

(2.) One Thomman had in his ownership certain properties. He died intestate. Xavier and Antony were his sons and Mary, the 1st defendant, his only daughter. In O.P. 1 of 1962 Xavier obtained a declaration that his brother Antony was of unsound mind and he got himself appointed Antony's guardian. Xavier died on 12.1.1979.

(3.) The learned Sub Judge has made the following observations about the mental condition of Antony. "So it means that the petitioner wanted to create document to the effect that Antony was a lunatic.................The petitioner's husband has also created all necessary document to establish that Antony was a lunatic". (paragraph 11). But the last sentence in the very same paragraph is this: "It is also seen from Ext B18 and deposition of DW2 that Antony was a lunatic in the year 1980, i.e, on the date of notice". Again in paragraph 17 he has said: "So the deposition of Manuel Sequeira and Ext B19 show that Antony was suffering from mental disease". But we also see the following sentence in paragraph 19: "Suppressing the entire facts Tresa and Xavier tried to describe Antony as an insane person with certain ulterior motive". Thus there is not only no definite finding, but there are conflicting observations also in the judgment of the lower court about the soundness of mind of Antony, which is the pivotal question in the case.