JOHN GURUPRAKASAM Vs. YOVEL NESAN

JUDGEMENT

(1.) The question involved in this appeal is whether the Suit brought by the appellant for declaration of the validity and genuineness of a Will is hit by either S.213 of the Indian Succession Act or the proviso to S.34 of the Specific Relief Act, 1963.

(2.) The facts of the case are as follows: Deceased Yovan Samuel was the brother of the plaintiff appellant. He is stated to have executed Ext. P2, a Will dated 23rd June 1958, registered as Will No. 9 of 1958. Yovan Samuel died on 31st May 1959 about a year after the execution of Ext. P2 Will. The appellant was granted probate by the District Court, Trivandrum in Probate Case No. 2 of 1960. No notice had been given to the defendant respondent who is admittedly a nephew of the deceased, being the son of a deceased brother. On a caveat being presented by the defendant, the probate was revoked with liberty to initiate fresh proceedings. The plaintiff did not file any fresh application for probate but instituted a suit for a declaration that Ext. P2 Will is a validly executed document and that Ext. D17, Will dated 20th December 1957 set up by the defendant is invalid. The suit was contested by the defendant who contended that Ext. P2 Will was brought into existence by misrepresentation, undue influence and coercion. The defendant also challenged the maintainability of the suit for declaration without a prayer for consequential relief. The Principal Subordinate Judge, Trivandrum decreed the suit with costs. In appeal, the defendant contended that the suit was barred in view of S.213 of the Indian Succession Act. The appellate court upheld the plea and dismissed the suit. The second appeal is filed challenging the above decree.

(3.) S.213(1) of the Indian Succession Act reads: