THRESIA Vs. C LONAPPAN MATHEW

JUDGEMENT

(1.) This petition has been referred to us by a Division Bench (Vithayathil, J., and Kumara Pillai, J.,) before whom it came on in the first instance, under the following order of reference:

(2.) The positions respectively taken by the petitioner as representing the next of kin who will succeed to the estate as on intestacy on failure of the bequest for charities on the one side and by the executor probate-holder who had been constituted the sole trustee of the Charities, on the other, are succinctly stated in the order of reference and we do not therefore re-state them. To appreciate the further elucidation of their stand before us and also the fresh position contended for by the learned Advocate General as representing the Charitable bequests impugned, the following further facts may conveniently be stated before we proceed further.

(3.) The first will executed by the deceased on 29.1.1952 had like the second will of 26.3.1953 been deposited with the District Registrar on 31.3.1952 in view of S.118 of the Succession Act. It had also not been withdrawn from the deposit when the second will was made and deposited and indeed continued in the custody of the Registrar, until production before us by him on our requisition. The two codicils of 26.2.1953 and 28.2.1953 however were at all material times after their execution, with the testator until on his death they came into the possession of the executor who produced them before us. We have marked these two codicils and the first will as Exts. I to III.