SOUNDARARAJA PETER Vs. FLORANCE CHELLAIH

JUDGEMENT

(1.) DEFENDANTS 2 and 3 in O.S. No. 2 of 1967 on the file of the Court of the District Judge, Madurai, are the appellants in this appeal arising out of a suit filed under Section 217 read with Section 222 of the Indian Succession Act by one of the daughters of one Mrs. Natchatram Peter Issac for grant of a probate of the last will and testament of the said Mrs. Natchatram Peter Issac. The plaintiff and defendants 4 to 6 are the daughters and defendants 1 to 3 are the sons of the said Mrs. Natchatram Peter Issac. The father Mr. Peter Issac, died in 1941 and the mother died on 20 -8 -1960. The father had earlier left a will bequeathing one third of his properties to his wife Mrs. Natchatram Peter Issac. According to the plaintiff, her mother left a will dated 26 -8 -1958 whereunder all the properties which belonged to her have been bequeathed to all her daughters, the plaintiff and defendants 4 to 6. The grant of either probate or Letters of Administration with the Will annexed is sought for in the suit in relation to the said Will.

(2.) THE suit has been resisted by defendants 1 to 3. They denied the genuineness of the Will. According to them, their mother was 80 years old and for a few years prior to her death on 20 -8 -1960 she had paralytic stroke and was completely bedridden and she was not in a sound and disposing state of mind. It is their case that taking advantage of the helpless position of their mother the plaintiff with the connivance of the 5th defendant with whom the mother was living, had brought about the said Will fraudulently, Defendants 4 to 6 remained ex parte.

(3.) THE plaintiff has examined P. W. 2, the scribe and P. W. 4, an attestor, to prove that the Will was duly executed by the testatrix. She also examined, P. W. 3, an Advocate of the Madurai Bar who prepared the draft for the Will. Ex. A -2 in the case. The Trial Court, mainly on the basis of the evidence of these three witnesses, held that the Will had been duly executed by the mother of the plaintiff; as regards the question as to whether she was of a sound and disposing state of mind at the time of the execution of the Will, the court below found that she has been attending to certain proceedings and also was operating bank accounts. It also relied on other evidence in the case indicating that the mother of the plaintiff was in a position to attend to her own affairs and that she could not have been bedridden at or about the time of the execution of the Will Ex. A -1 dated 26 -8 -1958 as alleged by the contesting defendants. It specifically considered the defence case that the testatrix suffered a paralytic stroke two years before her death and ever since then she has been confined to bed and that her physical and mental condition was so weak that she could not attend to her own affairs in the light of the evidence adduced by them. The evidence in this regard adduced by the contesting defendants consists of the evidence of D. Ws. 1 to 3. D. W. 1 is that 1st defendant and is the eldest son. He deposed that his mother had a paralytic attack two years ago and from then onwards she was bedridden. He admitted that she was being attended by one Dr. Manickavasagam. But the said doctor has not been examined to speak to the truth and the nature of the paralytic attack and about the physical condition of the lady after the alleged attack. D. Ws. 2 and 3 are strangers who have spoken to the fact that the lady was suffering from paralysis and was not moving about. But in the absence of direct evidence from the doctor as to the nature of the disease, the lower court was not inclined to accept the evidence of these witnesses when they say that the lady was not in a position to move about and was not in such a mental state as to execute the Will in question. It therefore proceeded to hold that the Will is true and genuine and that the testatrix was of sound and disposing posing state of mind at the time of the execution of the will. In that view it decreed the suit granting Probate in favour of the plaintiff on her satisfying certain formalities.