ROSSY LAZAR Vs. JOSE P JOHN

JUDGEMENT

(1.) THE petitioners in O. P. 181 of 1982 before the additional District Judge, Trichur are the appellants. This application under s. 276 of THE Indian Succession Act, 1925, for short THE Succession Act, for letters of administration with the will annexed, stands dismissed by the order under challenge.

(2.) THE genuineness of Ext. Al, the will executed by one thandamma in favour of her brother's son Lasar who was the husband of the first appellant and the father of the other appellants, was under challenge in O. S. 84 of 1956 before the Additional Subordinate Judge, of Trichur. That was a suit instituted by two of the heirs of Thandamma (Lasar was the first defendant in the said suit) for a declaration that Ext. Al will was not validly executed and also for a permanent injunction restraining Lasar from dealing with the properties covered by the will. THE Subordinate Judge after considering the various aspects of the issue, held as follows: "the circumstances I have narrated show that the deceased had not a disposing mind on the date of Ext. Dl (Ext. Al here) and that ext. D1 did not express the true will of the deceased. In any view of the matter the circumstances narrated by me excite the suspicion of the court as to the genuineness of the will. It is not removed by the evidence adduced in this case and so the will cannot be accepted as that of a free and capable testator. I therefore find on this issue for the plaintiff that the deceased Thanda was not possessed of a sound mind and disposing capacity in executing the will propounded by the 1st defendant. I also find that the will is invalid for the above reasons". THE appeal, A. S. 791 of 1959 filed by the first defendant lasar challenging the above finding was dismissed by this court by judgment dated 7-1-1964. Relevant portion therefrom is extracted hereunder:--"therefore, i am not satisfied that the evidence of DW3 alone is sufficient to dispel the suspicion arising out of the circumstances surrounding the execution of the will. THE result is the decision of the lower court is confirmed and the appeal is dismissed with costs of the plaintiff-respondent". THE declaration discernible from the judgment aforesaid that Ext Al will is not genuine and hence not valid has become final. It could thus be inferred from the above observation that Thandamma had not executed any will. In other words she had died intestate.