LAKSHMIKUTTY AMMA Vs. INDIRA

JUDGEMENT

(1.) Defendants 1, 3 and 4 in O.S.No.7/2015 on the file of the Additional District Judge-V, Kozhikode, have filed this appeal under Sec. 299 of the Indian Succession Act, 1925. First appellant is the mother of appellants 2 and 3 as also respondents 1 and 2. The 1st respondent is the plaintiff. The second respondent is the second defendant in the suit.

(2.) The proceeding before the District Court was instituted as an original petition under Ss. 71 and 270 of the Indian Succession Act, seeking a declaration that the Will dtd. 27/7/1993 executed by late Kunhikrishna Kurup, the husband of the 1st appellant and father of the remaining parties, be construed to the effect that the plaint schedule properties were bequeathed to the 1st respondent, who is the only daughter, and for grant of probate, ignoring a correction in the 8th line of page No. 2 of the Will, by which the bequest was altered in favour of all the children of late Kunhikrishna Kurup. Further, injunction restraining the appellants and the 2nd respondent from causing any damage to the property, making alterations, encumbering or transferring the same to the third parties was also sought. Appellants and the 2 nd respondent contested the proceedings raising serious contentions. Therefore, the District Court converted the petition as Original Suit No.7/2015, invoking Sec. 295 of the Indian Succession Act. Thereafter the appellants and the 2nd respondent filed a written statement. On the basis of the pleadings, the learned Additional District Judge framed five issues. On the side of the 1 st respondent/ plaintiff, PW1 to PW3 were examined. The 1st respondent herself was examined as PW1. Daughter of one among the attesting witnesses to the Will was examined as PW2. The Assistant Director (Documents), Forensic Science Laboratory, Thiruvananthapuram was examined as PW3. Exts.A1 to A7 were marked on the side of the plaintiff. On the side of the appellants and the 2 nd respondent, DW1 to DW5 were examined. The 1st appellant was examined as DW1 and the 2nd appellant was examined as DW2. DW3 was a witness to the opening of the sealed cover in which Will was kept. DW4 was the Registrar who opened the Will on 6/12/2006. The Sub Registrar who prepared Ext.X2 was examined as DW5. Exts.X1 to X3 as also C1 were marked. On the side of the appellants and 2nd respondents Exts.B1 to B9 were marked.

(3.) The dispute pertains to a correction in the 8 th line of page No.2 of Ext.X1 Will. The Will was executed on 27/7/1993 by Kunhikrishna Kurup and was deposited before the District Registrar on the same day. On 6/12/2006, after death of Kunhikrishna Kurup, the 2 nd appellant approached the District Registrar with the receipt of the deposit issued to Kunhikrishna Kurup and requested to open the sealed cover deposited. The District Registrar opened the sealed cover in the presence of the 2nd appellant and also two witness who are the friends of the 2nd appellant. The District Registrar made arrangements for preparing a true copy of the Will and filing it in Book No.3. Thereafter the Will was registered as document No.94/ 2006. Later the Will was again deposited on 13/12/2006. These are undisputed facts.