MARY MOHAN CHACKO Vs. INSPECTOR GENERAL

JUDGEMENT

(1.) Petitioner has approached this Court seeking to quash Ext.P3 Will.

(2.) Bare facts of the case necessary for the disposal of the writ petition are as follows: lst petitioner is the wife of the 2nd petitioner, who is the eldest son of late Chinnamma Chacko, who is the testatrix of Ext P1 will and respondents 5 and 6 are her children. The testatrix's husband is late K. E. Chacko. It is contended that the testatrix is having certain extent of properties and she has executed Ext.P1 registered Will No.106 of 1996 of Sub Registrar Office, Pattom. Petitioners contend that going by Ext.P1 Will it is executed in favour of the petitioners. The testatrix died on 10/1/2015 as is evident from Ext.P2 death certificate. It is the contention of the petitioners that the testatrix's husband has cancelled Ext.P1 Will executed by the testatrix and registered a new Will, Ext.P3 as document No.38/III/2022 of Sub Registrar Office, Edappally. The 1st petitioner lodged Ext.P4 complaint before the 1st respondent and by Ext.P5 order the matter was directed to be enquired into. Thereafter 2nd respondent after inquiry issued Ext.P6 communication essentially holding that since the Will is registered, it can only be cancelled through an order of a competent court. It is in the said circumstance that the petitioners have approached this Court seeking to quash Ext.P3 Will.

(3.) A counter affidavit has been filed on behalf of respondents 5 and 6 mainly contending that a writ petition is not maintainable in as much as the validity of a Will cannot be a subject matter of a writ petition under Article 226 of the Constitution of India. On the factual aspect they would contend that the husband of the testatrix has been given ample power as per Ext.P1 Will itself to amend or cancel the terms of the Will and it is invoking the said power that Ext.P3 Will was executed. Disputes regarding the contents of the Will can only be adjudicated in a civil court. The counter affidavit further states that late K.E.Chacko who executed Ext.P3 also submitted Ext.R5(b) objection before the registering authority and Ext.R5(c) complaint was also preferred by him challenging the findings in Ext.P6. It is further contended that though Ext.P1 Will was executed, late K.E.Chacko who executed Ext.P3 Will was under the impression that his son and his wife would take care of him and his wife, but they neglected to take care of them and thereafter late K.E.Chacko was residing along with his younger daughter and that K.E.Chacko has also preferred Ext.R5(a) complaint against his son before the Tribunal constituted under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007.