NATARAJAN Vs. SREE NARAYANA D S TRUST

JUDGEMENT

(1.) Defendants are the appellants. The appeal arises out of a suit for recovery of possession of plaint schedule properties from the defendants and for a decree for past and future mesne profits at the rate of Rs.7,750/-per annum.

(2.) Plaintiff's case, briefly stated, is as follows: Plaintiff is a religious and charitable society situated at Varkala, Trivandrum District. It is a public trust formed with the object of disseminating and propagating the teachings and principles of Sree Narayana Guru, to hold, administer and develop mutts, temples and other religious educational, cultural and charitable institutions. The father of the defendants, late Sri S. Padmanabhan of Pandikkariyil, Vayalar East Village, Shertallai Taluk was an ardent follower of late Sree Narayana Guru. He owned vast extent of properties in Shertallai Taluk. The plaint schedule properties belonged to him. In consideration of his reverence for the Guru, he executed a will and got it registered as No. 17/68 at the Sub Registrar's office on 18-12-1968. He signed the will in the presence of the witnesses, who also signed in his presence. He had full and complete testamentary capacity at the time of execution. The testator died on 1-12-1969. By the will, he bequeathed the plaint schedule properties in favour of the plaintiff. The defendants knew about this will. But, after his death, they suppressed the fact of disposition of the properties. They entered into possession of the same notwithstanding the fact that they had the knowledge that the properties on being bequeathed by the testator, belonged to the plaintiff. The plaintiff and their office bearers were not aware of the existence of such will until Sri R. Gangadharan, an Advocate, came to know of it in March, 1980 during his visit to that area for collection of funds for the Trust. A certified copy of the registered will was obtained on 26-4-1980. The defendants were requested to deliver possession of the properties to the plaintiff: but it was not successful. Finally on 9-10-1981, a registered notice was issued to the defendants on behalf of the Trust to surrender the properties with mesne profits. In reply, the defendants denies the validity of the will and stated that subsequent to the date of the will, the testator had cancelled the same and executed another will as his last will bequeathing all the properties in favour of the defendants. Since the will in question was the last will of the testator, the contention of the defendants in their reply is false. Hence the suit was filed on 13-4-1984 as O.S.No.67 of 1984 before the Sub Court, Shertallai.

(3.) The defendants in their joint written statement, while denying their liability to deliver possession of the properties or to pay any mesne profits, state that the father of the defendants (the testator) was residing in the building of the plaint schedule properties along with those defendants and their mother. The defendants are the only issues in their wedlock. Though the second defendants took up residence at Ernakulam, the first defendants continued to reside there with his children, father and mother. Their father developed illicit intimacy with another lady for which there was no peace in the family. He become mentally and physically incapacitated and practically became insane. It is during this period, that is, at a time when he had no disposing capacity, he executed the will. But, when he realised his folly, he handed over another unregistered will to the second defendant whereby he cancelled the earlier one. These defendants have entered into possession of the suit properties in their capacity as legal heirs of their late father. Until the will was cancelled, they had no knowledge of the same. The will in question having not been duly executed, is invalid and inoperative. They are not in possession of the original draft of the will. The suit is otherwise barred by the law of limitation.