JOSEPH THOMAS Vs. JOSEPH JOSEPH

JUDGEMENT

(1.) This appeal has arisen against the judgment in O.S. No. 8 of 1985 on the file of the District Court, Kottayam. First Defendant is the Appellant. That suit was originally filed as O.P. No. 389 of 1984 for granting letters of administration to the Plaintiff u/s 278 of the Indian Succession Act in respect of the suit properties. Then, it was converted into the suit.

(2.) According to the Plaintiff (first Respondent herein), one Annamma alias Achamma, mother of the Plaintiff and Defendants 1 to 7 and sister of the 8th and 9th Defendants and grandmother of Defendants 10 to 15, was the owner of the plaint. A schedule property measuring 1 acre 44 cents located in Sy. No. 231/13 of Vadayar Village, Kottayam District. She executed Ext. A-1 deed on 15th August 1981 bequeathing the plaint property, 1 acre and 44 cents, in favour of the Plaintiff, with direction to the Plaintiff, propounder of the Will to discharge some old debts and also to pay some cash to some of the Defendants. 'The testatrix died on 25th February 1984 at the age of 77. The first Defendant, Appellant herein resisted the suit on the main ground that his mother was not in a sound state of disposing mind at the time of execution of the Will in question. She was, in fact, physically also ill and the Plaintiff has brought the Will into existence with the collusion of the 4th Defendant and it is a fabricated one. Therefore, no decree can be granted. The trial court on examining the contentions of both sides and also the evidence let in on their sides held that Ext. A-1 Will is proved and therefore, the Plaintiff is entitled to the letters of administration as prayed for.

(3.) Learned Counsel, Mr. V.P. Yohannan, appearing for the Appellant contended that in Ext. A-1 Will, the first Defendant is excluded without any reason and the Plaintiff alone is said to have been bequeathed to the entire immovable property and therefore, the disposal of the property under Ext. A-1 is unfair and unjust. In Ext. A-1, a direction is given to repay a loan, but that loan was already discharged. P.W. 2 the brother of the testatrix and the 8th Defendant, the sister of the testatrix have attested the Will and no other independent witness or any neighbour of the testatrix has signed Ext. A-1 as attestor and no reason is also given by the Plaintiff as to why the testatrix selected her close relatives who are residing far away from the residence of the testatrix, where the Will is said to have been executed. Thus, these are the suspicious circumstances surrounding the execution of the Will and those suspicious circumstances have not been dispelled by the Plaintiff.