CHACKO Vs. ELIZABETH JOHN

JUDGEMENT

(1.) Plaintiff in OS 7/85 before the District Court, Kottayam is the appellant. On his death pending the appeal, his legal heirs are impleaded as additional plaintiffs 2 to 4. Respondents 1 to 5 were defendants in the suit. Pending appeal, respondents 1, 3 and 4 died. Their legal heirs were impleaded as respondents 12 to 13, 6 to 8 and 9 to 11 respectively. Plaintiff, P. C. Chacko originally filed OP 214/84 under S.276 of the Indian Succession Act for issue of probate of the Will of his deceased mother Saramma Chacko. Counter petitioners 1 to 5 were the other children of late Saramma Chacko. Respondents 1, 2 remained ex parte. Respondents 3 and 4 appeared and contested the petition. Therefore, the petition was converted as a suit and numbered as OS 7/85.

(2.) Late Saramma Chacko died on 3.3.1978 at the house of the 3rd defendant. Plaintiff and defendants are her sole legal heirs. It was contended by the plaintiff that late Saramma Chacko executed her last will which was accepted by her in the presence of witnesses before the District Registrar's office, Kottayam on 23.7.1966. The Will was kept under safe custody of District Registrar's Office, Kottayam. On the application by the power of attorney holder of the plaintiff, sealed document was opened in the District Registrar's Office and it was registered as document No. 24/81 before the Sub Registry Office, Kottayam. Producing a certified copy of the Will, plaintiff filed an application to call the original Will Deed kept under the safe custody of the District Registrar's Office. It is contended by the plaintiff that the properties included under Scheduled A to the Will which would take in 24 cents of property in Sy. Nos. 220/18 and 221/1 and 1 acre 2 cents of property in Sy. No. 215/7 among other items were set apart to him. But during the life time of the testator, out of the above properties, she transferred the right in 5 acres 40 cents of Nilam under a gift deed No. 2649 in favour of the 3rd defendant, P.C. Cheriyan. Plaintiff is in possession of balance property consisting of 24 cents in Sy. Nos. 220/18 and 221/1 and 1 acre 2 cents in Sy. No. 215/7 of Nattakom village along with the building thereon. On the above basis, he may be appointed as executor of the Will.

(3.) Third defendant contended that late Saramma Chacko had no occasion to execute any Will either on 23.7.1966 or on any other date. She was continuously residing with third defendant till her death and no Will could have been executed without his knowledge. The alleged Will is. a fabricated document and came into existence without the knowledge of Saramma Chacko. According to him, the plaintiff is not in possession of the property as claimed by him and he was not entitled to the same also. 24 cents of property is in the possession of fourth defendant and the third defendant is in possession of 1 acre 2 cents of land with building thereon.