RAHAEL Vs. PALAMMAL

JUDGEMENT

(1.) The defendants 1 to 4 are the appellants herein. The first respondent/plaintiff filed a petition under Section 264 of the Indian Succession Act before the District Court, Kanniyakumari District at Nagercoil for granting order of probate of the last Will of K.Thangayyan bequeathing the properties in her favour. Since the petition was contested, a suit was registered and tried by the District Judge, Kanniyakumari at Nagercoil.

(2.) The first respondent/plaintiff's case before the trial Court may be briefly stated as follows:- The plaint schedule properties originally belonged to the brothers, K.Nesamony, K.Nesayyan and K.Thankayyan and out of the plaint schedule items, items 1 and 2 are garden lands and items 3 to 5 are paddy lands. There had been a partition about 20 years prior to the suit among the three brothers. Item No.3 was divided into two plots of which the western 2/3rd share had been in possession of Thankayyan and his brother Nesayyan, the 5th defendant herein, and the eastern 1/3rd share has been in possession of Nesamony and presently with the defendants 1 to 4, his legal heirs. Item Nos.4 and 5 were partitioned and in the partition, the northern 2/3rd share had been taken by Thankayyan and the 5th defendant and the southern 1/3rd share was given to Nesamony, the husband of the 1st defendant and the father of defendants 2 to 4. Thankayyan was a bachelor and he lived in the house of Nesayyan, the 5th defendant. While he was alive, Thankayyan executed his last Will and testament in favour of the plaintiff, the wife of Nesayyan on 11.10.1979 in a sound and disposing state of mind and he died later on 7.12.1979 at his residence. The testator was a Christian and the plaintiff and the defendants 1 to 5 were also Christians. Because of the Will, the plaintiff obtained a valid title and ownership of the properties of Thankayyan and she has been enjoying the same along with her husband. The defendants 1 to 4 did not inherit any share in the properties of late Thankayyan on account of the Will in favour of the plaintiff. The defendants 1 to 4 filed a suit in O.S.No.193 of 1981 before the District Munsif Court, Padmanabhapuram for partition in respect of the share of Thankayyan and the plaintiff and the 5th defendant herein are parties to the same. She claimed her share on the basis of the Will dated 10.11.1979 in the said suit.

(3.) The contentions raised by the appellants/defendants 1 to 4 in the written statement are briefly as follows:- Out of 4 acres and 14 cents in item Nos.1 and 2, Nesamony, Nesayyan and Thankayyan jointly sold 1 acre and37 cents and there was only 2 acres and 77 cents remaining with them. Later, Nesamony sold 27 cents and Thankayyan sold 32 cents out of their share. The contention that there was oral partition in respect of item Nos.3 to 5 is false. The brothers were in joint possession of the properties. Thankayyan did not execute any Will as alleged in the plaint and the document filed into the Court is a forged and spurious one. Thankayyan died intestate and thereupon, his legal heirs inherited the properties. It is true that the suit in O.S.No.193 of 1981 for partition of the plaint schedule properties had been filed by Nesamony and therefore, the present suit has been filed as a counter blast to the said suit by the wife of the 5th defendant setting up a false Will at the instance of her husband. Hence, there can be no probate granted in favour of the plaintiff, since there is no Will.