ACHO DOMINIC Vs. XAVIER

JUDGEMENT

(1.) The legal representatives of the sole defendant in a suit for partition are the appellants in this case. The plaintiffs, the children of the deceased defendant's sister Thresiamma filed a suit for partition of the properties held by her father Acho. A notice was issued demanding partition and separate possession of the properties. The defendant objected to that demand by a reply notice stating that the said Acho had executed a Will on 15.6.1921. In terms of the said Will the plaintiffs' mother and thereby the plaintiffs did not have any right to seek partition. This dispute led to the suit. The defendants set up the defence based on the Will which is Ext. B 13 as referred to in the trial Court judgment. The trial court found that the will was never proved as enjoined by law and section 69 of the Evidence Act by examining any of the attesting witnesses, So the will was not accepted and acted upon by the trial court. The trial court held that the parties were entitled for partition of the properties left by the said Acho in equal shares.

(2.) The parties belong to erstwhile Cochin State. They are Christians. The properties sought to be partitioned is within the limit of the erstwhile Cochin State. It was also in evidence that the said Acho had died about 60 years ago when the suit was filed. The court estimated his death as in 1923, before the advent of Indian Succession Act, 1925 and even before the advent of United States of Travancore Cochin, when that Act was made applicable to the said State. The Law of Succession among Christians in erstwhile Cochin State was covered by Cochin Christians Succession Act, 1097 ME, corresponding to 1921. Thus on the date of death of the said Acho, this Cochin Act had been in force.

(3.) The defendant filed an appeal. In that appeal the lower appellate court held that the said Will Ext. B13, being a document originated before 30 years ago and as it was produced in Court by the defendant, the son of the estator, it was found as one presumed to be proved in terms of Sec. 90 of the Evidence Act as the production was thus from the lawful custody and accordingly the lower appellate Court that the Will was genuine. The Will referred to payment of Streedhanam to plaintiff's mother thereby resulting extinction of the right to share the properties left by the testator, which was in tune with the provisions contained in the Cochin Christians Succession Act. Inspite of that the Will was not acted upon by the lower appellate Court as it was not probated in terms of Sec. 213 of the Indian Succession Act, 1925 or in the corresponding provision in Cochin Probation and Administration Act, 1922. When the Will thus could not be acted upon according to the lower appellate Court, the parties were entitled to the shares in terms of the Cochin Christians Succession Act as the death of Acho took place in 1923, before Indian Succession Act was made applicable to the area. Accordingly, the suit was decreed in terms of the Succession provided for in the said Act. It is this decree that is challenged by the appellant mainly contending that when the Will was found to be genuine by the lower appellate court, it went wrong in not accepting the contents therefore at least for the collateral purpose regarding payment of dowry to the mother of the plaintiffs to disentitle them for partition sought for. Thus the main substantial questions of law arising in this appeal centers around the said Will and necessity of its probating. The latter aspect has emerged because of change in law during the pendency of this appeal.