K INDIRA BAI Vs. K VENKATA SIVAPRASADA RAO

JUDGEMENT

(1.) This is an appeal against the judgment of Yahya Ali. J, dismissing a suit brought by the appellant for grant of letters of administration with the will of the deceased K.V. Balakrishnamurthy annexed. She is the widow of the testator. The caveator, the defendant in the suit and the respondent herein is the uterine brother of the deceased. The appellant alleged that her husband Balakrishnamurthi duly executed on 4-8-1947 the will in respect of which letters of administration were sought. He died on 6-8-1947. The defendant pleaded that when the will was executed by him Balakrishnamurthy was not in a sound and disposing state of mind and in any event the will was executed under coercion and undue influence exercised on the testator by his father-in-law, one Dr. G. Venkatarao. In addition to these pleas which are strictly germane to a testamentary suit, the defendant also pleaded that the deceased was an undivided member of a joint family along with the defendant when he executed the Will and when he died and that therefore it was not valid and binding as the deceased had no power to dispose of joint family properties. The following issues were framed on the pleadings. 1 Was the Will dated 4-8-1947 executed by late Kathirisetli Venkala Balakrishnn-murthi while in a sound disposing state of mind?

(2.) Was the Will, dated 4-8-1947, executed by late K.V. Balakrishnamurthi under coercion and undue influence exercised by his father-in-law?

(3.) Was the deceased not divided in status from the other members of his family at the time when he executed the will and when he died? Though a determination of the third issue was not necessary for the grant of the relief prayed for by the plaintiff, yet both the parties went to trial on the issue and the learned Judge has given his finding on that issue as well. 2. The learned Judge found in favour of the plaintiff on both issues 1 and 2. Ordinarily, on these findings, the suit should have been decreed. But the learned Judge found against the plaintiff on issue 3 on the ground that the deceased was not divided in status from the defendant at the time when he executed the will and therefore the will was not valid and binding on the defendant. In the result, he dismissed the suit, though the learned Judge felt constrained to observe that the result was by no means satisfactory. The plaintiff appeals against the dismissal of her suit. 3. The learned counsel for the respondent challenged the findings of fact arrived at by the learned trial Judge and sought to support the dismissal of the suit on the grounds on which the trial Judge had held against him. The appellant's counsel besides supporting the findings of the learned Judge on the facts attacked the correctness of the learned Judge's finding on issue 3. It is convenient first to take up issues 1 and 2 together.