JOSE IMMATTY ANTHONY Vs. OUSEPH

JUDGEMENT

(1.) Can the presumption that a legacy to an attesting witness is void under Section 67 of the Indian Succession Act be rebutted by the legatee establishing that he had signed the will not as an attesting witness but acknowledging the obligations he has to discharge under the will, is the question that has come up for consideration in this case.

(2.) O.P.No. 40 of 1991 was filed by one of the legatees seeking Letters of Administration of a Will executed by his mother late Kathreena. In response to the notice, first respondent alone entered appearance and contested and the O.P was then numbered as a suit O.S 5/1993 and was tried by the District Court, Thrissur. Kathreena is the mother of plaintiff and defendants 2 to 6. First defendant is the grandson of Kathreena and the son of Antony. Kathreena had executed a Will on 29.08.1957 and got it registered as document number 53 of 1957 of the Sub Registry Office, Thrissur on 30.8.1957. She had signed the document in the presence of attesting witnesses and the witnesses signed in her presence. Plaintiff and fifth defendant had also put their signatures in the Will along with the attesting witnesses. Enasu, the first attesting witness is no more. Kathreena died on 19.1.1989 and her husband predeceased her on 12.7.1957. Claiming that the above mentioned Will is the last testamentary disposition, plaintiff the son of the testatrix and a legatee claimed Letters of Administration. Claim was not opposed by any of the defendants except the first defendant, son of Anthony, grandson of Kathreena.

(3.) The first defendant in the written statement pointed out that Kathreena had executed the Will not out of her own free will and volition but as a result of undue influence and coercion. Further it was stated that the bequest is void so far as the plaintiff is concerned under Section 67 of the Indian Succession Act since he had also attested the bequest. It was contended that the testatrix was physically and mentally weak at the time of the alleged execution of the Will and had no sound disposing state of mind. First defendant therefore prayed for dismissal of the suit. During the pendency of the suit, third defendant died and the plaintiff filed an application, I.A. No. 2437 of 1993 seeking exemption from impleading the legal heirs of the deceased third defendant and that prayer was granted. Sixth defendant has filed a statement supporting the claim of the plaintiff. Other defendants remained exparte. Plaintiff got himself examined as P.W.1 and one of the attesting witnesses was examined as P.W.2. Ext. A2 is the Will executed by Kathreena. First defendant got himself examined as D.W.1.