PAPPOO Vs. KURUVILLA

JUDGEMENT

(1.) One Mr. Mathew J. Kollamparambil had executed two Wills on 16-11-1972 and 16-11-1978. As per the Will of 1972, Sri. A. A. Joseph, Advocate, Kottayam was appointed Executor. Under the Will of 1978, Sri. V.J. Pappoo was appointed the Executor. Sri. Mathew J. Kollamparambil died on 18th April, 1979. Thereupon the Executors under the above mentioned Wills approached this Court for getting probate issued with the respective Wills attached to it. Executor under the Will dated 16-11-1972 moved this Court by filing O.P. 1327 of 1980 and the Executor under the Will of 1978 filed O.P. 1874 of 1979 for identical relief. Respondents in this Original Petitions questioned the genuineness of the Will and consequently the matters became contentious. Thereupon O.P. 1874 of 1979 was converted as O.S. 1 of 1984. O.P. 1327 of 1980 has been re-numbered as O.S.2 of 1984. As per the rules framed under the Indian Succession Act, 1925 where two or more applications for probate relating to the same estate are filed, the Court shall order those applications to be consolidated and heard as if there were only one proceeding. One of the applications has to be chosen for the said purpose and the parties to the remaining applications are to be joined as respondents therein. In view of the said provision, by order dated 7-2-1994, the Original Petitions, which were converted as suits, were consolidated as O.S. 1 of 1984 and is treated as the suit under R.29 of the Rules of the Indian Succession Act, framed by the High Court. Plaintiff in O.S. 2 of 1984 was impleaded as additional defendant in O.S. 1 of 1984. All the parties to that suit were also impleaded as additional defendants in O.S.I of 1984.

(2.) The material averments made by the plaintiff in O.S. 1 of 1984 in the plaint as it now stands amended, which was filed as O.S. 1874 of 1979, are as follows. Mathew J. Kollamparambil died at Lissie Hospital, Ernakulam on 18-4-1979. The writing annexed is the certified copy of his last Will and testament. It was duly executed at Ernakulam on 16-11-1978. Petitioner (plaintiff) is the Executor in the said Will. Testator had executed another Will dated 16-11-1972, the certified copy of which is also annexed. By his Will dated 16-11-1978, he revoked the previous Will dated 16-11-1972. The revocation of the earlier Will was a dependent relative revocation so far as the religious and charitable bequests in the former Will are concerned while all the other provisions of the former Will stand revoked by the last Will dated 16-11-1978. By virtue of the application of the doctrine of dependent relative revocation, the religious and charitable bequests in the former Will will take effect. For the purpose of application of the doctrine Of dependent relative revocation, it is necessary that probate is granted with the Will dated 16-11-1972 also annexed. The former will dated 16-11-1972 was duly executed at Ernakulam. Sri. A. A. Joseph (petitioner in O. P.1327 of 1980, which was numbered as O.S. 2 of 1984) was the Executor named in, the said Will and his appointment as Executor was revoked as per the last Will dated 16-11-1978. To the best of his knowledge, Annexure A, B(i), B(ii), B(iii) and B(iv) are the properties and credits which the deceased possessed of or was entitled to at the time of his death. Annexure B contains the items which he is entitled to deduct. Deceased left defendants 1 and 2 as his surviving next-of-kin under the Travancore Christian Succession Act. The testator has immovable property in the State of Karnataka also. Item No.27 in Annexure A is situated within the jurisdiction of the District Court, Bangalore. Petitioner is not in a position to assess the value of the properties of the testator. Wills dated 16-11-1972 and 16-11-1978 were duly executed. Petitioner is the Executor named in the last Will. Hence it is prayed that probate may be granted to the petitioner having effect throughout Kerala and Karnataka with the Will dated 16-11-1978 and also the Will dated 16-11-1972 annexed, Will dated 16-11-1972 being annexed only in so far as the religious and charitable bequests therein are concerned.

(3.) The Executor named in the Will dated 16-11-1972, namely Sri. A. A. Joseph, who is the additional 24th defendant in O.S. 1 of 1984, raised the following contentions in O.P. 1327 of 1980, which are subsequently numbered as O.S. 2 of 1984. Mathew J. Kollamparambil died on 18-4-1979. The writing annexed to the petition is the Registration copy of the last Will and testament executed by him. The original of it is in deposit in the office of the Sub Registrar, Ernakulam. It was written in the testator's own hand-writing and was duly attested. Petitioner is the Executor in that Will. The assets left behind by the deceased are set forth in Schedule-I to the petition. Schedule-II contains items which are to be deducted. The assets left behind are valued at Rs.8,05,000/-. Defendants 1, 2, 10 and 29 are the next-of-kin of the deceased under the Travancore Christian Succession Act. Application has been made by the petitioner in O.P.1874/1979 (O.S. 1 of 1984) for probate of a Will alleged to have been executed by the deceased. The genuineness and validity of that Will is contested by the legal heirs of the deceased. Petitioner denies its genuineness and validity. That will is a fabrication, brought into existence without the deceased knowing its contents. The said Will dated 16-11-1978 is no bar for issuing a probate to the petitioner with the Will dated 16-11-1972 annexed thereto. On these basis, it is prayed that a probate be issued with Will dated 16-11-1972 annexed to it.