T T JOSEPH V K Vs. IPPUNNY

JUDGEMENT

(1.) First appellant in this appeal filed an application for Letters of Administration of Ext. A4 Will dated 10-2-1989 executed by his mother Kochumariyam making his sister and two other brothers as defendants. Appellant herein who was made as additional fourth defendant filed an objection stating that Kochumariyam has executed a Will dated 1-3-1987 in his favour and he produced a certified copy of the same as Ext. B4. It is contended that he is the son-in-law of the said Kochumariyam and she was looked after by him for many years prior to her death. Appellant's wife, first defendant, who is the sister of the propounder also filed similar objection. Since objections were filed, the application was converted as a suit. Propounder of the Will examined four witnesses including himself. All witnesses other than the plaintiff deposed against his pleadings.

(2.) First respondent/plaintiff entered the box as PW1. He deposed that Ext. A4 is the Will executed by later Kochumariyam, his mother on 10-2-1989. It is a registered document No. 5/89 of SRO, Andathode on 13-2-1999. By the Will, she has bequeathed whatever property she had and she may acquire subsequently to the plaintiff. At that time, O.S. No. 96 of 1986 filed by her was pending regarding partition of the property owned by her husband. That was also mentioned in the Will. PW1 did not say that he has seen the testator or witnesses signing the Will. Even though he identified the signature of his mother, according to him, he came to know about the Will after much delay. He further deposed that O.S. No. 96 of 1986 was compromised, and testator relinquished her right and property of their father was partitioned between the children (Ext. A1). His mother was owning separate properties on her own right as evidenced by Exts. A2 and A3. (Nothing was mentioned in Annexure A2 Will with regard to Exts. A2 and A3.) in cross-examination, he deposed that the properties of the mother were not in his or third defendants' possession. It was originally in possession of second defendant. His mother filed a case before the Munsiff's Court, Wadakkancherry. When the case was filed, second defendant relinquished the power even before trial. Thereafter, the property was in the possession of fourth defendant (appellant). He also deposed that his mother was staying with the first defendant (her sister) and appellant (his brother-in-law) from 1985 onwards till her death (20-12-1999). He was not able to explain why his mother was staying with the daughter though she had three sons. He also admitted that die was buried in the par church of the appellant and not in his parish and appellant took all the expenses for bur He did not even attend the burial ceremonies in the Church. Even all services including ninth day services were done by the appellant. He also admitted that he is aware that his mother has earlier executed another Will. In Ext. A4 nothing is stated about Exts. A2 and A3 deeds or prior Will. In Ext. A4 Will, address of the mother is stated an plaintiff's of address even though she was residing with appellant and first defendant at the time execution of the Will. He deposed that he was told that earlier Will and present Will were written by the same document writer. His mother was aged 85 at the time of execution Ext. A4 Will.

(3.) PW2 is the alleged attesting witness to Ext. A4 Will. He is also the attesting witness in Ext. B4 Will executed in favour of the appellant. He stated that in both the Wills he signed as requested by the document writer V.K. Sankunni Menon. He signed as witness in Ext. A4 in the office of Registrar. He is not aware whether PW 2, PW4 or Sankunni Menon signed the Will. He has not seen the testator signing the Will. He also stated that he is not aware who is the testator even whether she is a woman or a man. Court rightly rejected his deposition as he was related to the appellant and is from the same family Even though his evidence cannot be believed, he categorically stated that he has not seen the testator or other attesting witnesses signing the deed in his presence though his signature was admitted.