PRINCELAL G Vs. PRASANNAKUMARI

JUDGEMENT

(1.) The common appellant in these appeals filed under Order XLIII, Rule 1(u) C.P.C. is the 3rd defendant in O.S. No. 393 of 1989 on the file of the Munsiff's Court, Kollam. The said suit as originally filed was one for a declaration that Ext. A-1 Will dated 14-2-1985 continues to be in force and that the plaintiff has half right over the plaint B and C schedule properties and for setting aside Ext. A-2 Will dated 29-1-1988, Ext. A-3 sale deed dated 29-1-1988 and Ext. A-4 settlement deed dated 26-9-1988 executed by the plaintiff's mother. The suit was subsequently amended as one for partition and separate possession of the plaintiff's one-fifth share over the plaint A Schedule Property.

(2.) The case of the plaintiff can be summarised as follows: Defendants 1 to 4 are the brothers and sisters of the plaintiff. The plaintiff and defendants 1 to 4 are the children of one Gopalan Vaidyan and his wife Sarasamma. The 5th defendant is the husband of the 4th defendant. The Plaint B and C Schedule buildings are portions of the plaint A Schedule Property. The plaint A Schedule Property was purchased by Gopalan Vaidyan utilising his own funds in the joint names of the said Gopalan Vaidyan and his wife Sarasamma as per Ext. B-1 sale deed dated 24-9-1124 (ME) corresponding to the year 1949. The building therein was also constructed by Gopalan Vaidyan with his own funds. During the life time of Gopalan Vaidyan and Sarasamma they executed the original of Ext. A-1 Will deed dated 14-2-1985 bequeathing the plaint A Schedule Property in favour of their children namely the plaintiff and defendants 1 to 4. Sarasamma, the wife was given the right to enjoy the property during her life time. After the death of Gopalan Vaidyan in the year 1986, Sarasamma was in great mental agony. She was also having several ailments due to old age. She was mentally and physically weak and was fully bedridden. She did not have the mental capacity to look after herself. Finally she died on 6-12-1988 while undergoing treatment at the Nairs Hospital. After the death of Sarasamma, the plaintiff was enjoying the terrace portion of 1st floor of the building in the plaint schedule property in accordance with the prescriptions under Ext. A-1 Will. Recently the 4th defendant claimed the entire building as his own. On inquiries by the plaintiff it was learnt that certain documents were created cancelling Ext. A-1 Will and executing another Will (Ext. A-2) purportedly by Sarasamma and Exts. A-3 and A-4 sale deed and settlement deed also purportedly executed by Sarasamma in favour of defendants 1 to 5. The said documents are invalid and liable to be set aside. Sarasamma did not have the requisite testamentary capacity to execute Exts. A-2 to A-4. Going by the prescriptions under Ext. A-1 Will Sarasamma was incompetent to alter or modify Ext. A-1 Will Sarasamma never desired to cancel the Will of her husband. After the death of Gopalan Vaidyan, Sarasamma was fully bedridden and was incapable of understanding the consequence of her own acts. Defendants 4 and 5 were in a position to dominate the Will of Sarasamma as they were standing in a fiduciary relationship and were exploiting their close relationship with Sarasamma. Ext. A-2 Will is void ab initio and Exts. A-2 and A-3 documents in favour of defendants 1 and 4 are also liable to be set aside. The plaintiff is entitled to the declaration prayed for and partition and separate possession of her one-fifth share over the plaint A schedule property. Hence the suit.

(3.) Defendants 1, 2 and 6 to 8 were set ex parte. The suit was mainly resisted by the appellant/3rd defendant who contended as follows: The suit is not maintainable besides being undervalued. The plaint A Schedule Property was purchased by Gopalan Vaidyan and Sarasamma utilising their funds and they were entitled to equal shares over the property. The building in the plaint A schedule property was also constructed with the joint funds of both Gopalan Vaidyan and Sarasamma. Ext. A-1 Will is admitted. As per clause 15 of Ext. A-1 Will the surviving testator becomes the absolute owner of the share of the deceased testator over the property and such surviving testator is entitled to cancel, alter or revoke the Will either in part or in its entirety. As the surviving testator, Sarasamma had the full freedom to revoke the Will, in exercise of the power conferred on her, she had executed Ext. A-2 Will dated 29-1-1988 after which the plaintiff cannot claim any right under Ext. A-1 Will. Sarasamma had the physical as well as mental capacity to execute Ext. A-2 Will. The allegations levelled against the execution of Ext. A-2 Will are denied. The plaintiff does not have any right over the plaint A Schedule Property. The plaintiff was aware of the execution of Exts.A-2 to A-4 by Sarasamma then and there. The allegation that Sarasamma was bedridden and was unable to understand and take decisions of her own is denied. The plaintiff is not entitled to any of the reliefs prayed for in the suit which is only to be dismissed.