MARY CHACKO Vs. RINOY MARTIN

JUDGEMENT

(1.) When two independent bequests are created in a Will in respect of the very same property, and when the said two bequests are totally irreconcilable, which one will prevail?

(2.) Late Chacko had executed Exhibit-A6 registered Will in respect of his properties, in the year 2001. In the first portion of Exhibit-A6 Will, it seems that he had made a bequest in respect of the properties scheduled in the Will, in favour of his wife Marykutty Chacko, who is the 1st defendant. Along with that bequest, a condition was incorporated that in case, any property is left behind after the death of the testator and the 1st defendant, the same shall devolve on their only son Martinmon. At the later part of the very same Exhibit-A6 Will, the testator again made an independent bequest to the effect that all his properties then in presenti and in futuro shall absolutely devolve on his son Martinmon on the death of the testator. The testator predeceased Martinmon. Thereafter, Martinmon also died on 20.03.2007, leaving the plaintiff as his only son. The plaintiff was then a minor. The mother of the plaintiff is mentally ill and incapable of taking care of herself and to look after and maintain the minor. The uncle of the minor was appointed by the District Court, Ernakulam as his guardian through Exhibit-A1 order dated 25.06.2010 in O.P. (Guardian) No.29 of 2009. After the death of his father, the minor, as plaintiff, represented by his uncle as his next friend, filed a suit for partition for getting the properties partitioned.

(3.) In the partition suit, the paternal grandmother of the plaintiff, who is the 1st defendant herein, propounded a subsequent Will dated 22.11.2005, allegedly executed by the very same testator. When the minor and his next friend could realise that the grandmother of the minor, who is the 1st defendant herein, had made attempts to propound a Will, as the last Will of the testator, which was not in fact executed by the testator, in order to make illegal claims over the properties in question, the minor had no other go than to file O.S.No.42 of 2008 before the Additional Subordinate Judge's Court, Irinjalakkuda, for declaring the said Will propounded by the 1st defendant in the partition suit, as void and for declaration that the plaintiff has got title over the properties left behind by late Chacko, on the strength of Exhibit-A6 Will No.196 of 2001.