SRIDEVI AMMA Vs. VENKITAPARASURAMA AYYAN

JUDGEMENT

(1.) These two connected appeals arise respectively from a suit for declaration and injunction, O. S. 34 of 1124 and a petition for letters of administration, M. P. 6 of 1124, both on the file of the Trichur District Court. The suit and the petition were more or less in the nature of cross proceedings concerned with the succession to the estate of Varavoor Ven-kiteswara Iyer deceased. They were accordingly tried and disposed of together by the court below, the common evidence being let in in the suit. As the appeals involved some novel and difficult questions they were referred to a Full Bench and so have come before us and arc being disposed of by this single judgment. We will be referring to the parties as arrayed in the suit for the purpose of convenience.

(2.) Venkitcswara Iyer, deceased, died suddenly as the victim of a murderous attack in his own, house at Vadakkancherry in Cochin, in Chingom 1124. He left behind him considerable properties movable and immovable and two sets of close relations, one in his caste and the other outside of it. Of these relations the former comprised Venkila-parasurainan, the 1st plaintiff and also five daughters all married off and -not parties. The plaintiffs 2 and 3 are the sons of the 1st plaintiff. The latter set comprised Venkiteswara Iyer'.s Nair wife Kunjikavu Amma the 1st defendant and three children by her, viz, Mala'hi, the 2nd defendant, Unnikrishna Mcnon, the 3rd defendant and Padmanabha Menon, the 4th defendant. Among the many records and papers of Venkiteswara Iyer found and seized by the Police at the time of their search of the scene of his death, was Ext. I testamentary instrument dated 19-1-1114 and executed by him on the eve of his pilgrimage The will went into great details as to the legatees and the properties of the testator to be respectively taken by them but the substantial beneficiaries under it were the defendants 2 to 4. This will was however not registered but left in deposit in sealed cover with the Superintendent of Registration at Trichur under Section 35 of the Cochin Registration Act 5 of 1084 corresponding to Section 42 of the Indian Act on 20-1-1.114.

(3.) Venkiteswara Iyer returned safe from his pilgrimage trip within a month and subsequently on 12-7-1118 also withdrew the sealed cover from its place of deposit. There is ,1 dispute between the parties as to whether Ext. T is the original will itself or merely a draft of it, but the main question in controversy between them in the court below and continued before us was how far Ext. I could govern the succession to Venkiteswara Iyer's estate. The plaintiff's case on the one side was that Ex. I was only a contingent or conditional will dependent for its effectiveness on the failure of the testator to return after the pilgrimage trip. But as that contingency did not happen the will had automatically become inoperative. Even otherwise according to the plaintiffs, the will had been revoked by the testator as evinced by his subsequent conduct. The defendants on the other band, con-tended that Ext. I was no way conditional the pilgrimage to Benares being, according to them only the reason or occasion for its execution. The plaintiffs had an alternative case, in the count below that the deceased was the Kartha of the joint Hindu family of himself and the plaintiffs at the time of his death, and the 1st plaintiff as the present Kartha was entitled to administer the estate in preference to the defendants. With the finding however of the court below that the case set up in the plaint and subsequent reunion of the 1st plaintiff with Venkiteswara Iyer in modification of their acknowledged separation of status in 1106 under Ex. I had not been made out, this alternative ease lost its importance and indeed has not been pursued before us. The defendants for their part had an alternative case that even assuming Ext. I was inoperative and there was only intestate succession in regard to the estate, they were still as co-heirs with the 1st plaintiff for a half share in the estate under the Nair Act of 1113 (Cochin) entitled to participate in its administration. But this alternative case also lost its importance in view to the finding of the court below based on the evidence in the case and also on the application of principle of res judicata that the conjugal union of Venkiteswara Iyer with the Ist defendant did not amount to a marriage under the Nair Act of 1095 which was then in force but was only a concubinage commencing as it did in 1097 or 1098 while yet the caste wife was alive. And though the defendants have raised the point in the appeal memorandum, they have not persisted in this alternative case in argument before us.