PRAVIN KUMAR Vs. P RAJESWARAN

JUDGEMENT

(1.) In these second appeals by defendants 1, 4. 5, and 6, the questions which arise for consideration relate to the genuineness and validity of two wills marked as Exs. A-3 and A-2, the former executed by one Jimmarammal, the mother of plaintiff and defendants 1 to 6 and the later executed by her paramour Prakasam Pillai, the father of plaintiff and defendants 1 to 6, Jimmarammal was admittedly the owner of the suit property. She died on 16-12-1971. It is stated that she left a will dated 27-11-1971, the genuineness of which was challenged by the defendants in the courts below. Under the said will. Jimmarammal granted power to Prakasam Pillai, whom she described as her "...........". in other words as the 'paramour. The relevant portion of the will granting power to the said Prakasam Pillai reads as follows :- () [Matter in vernacular omitted]

(2.) Prakasam Pillai executed a will dated 4-4-1977 the truth of which was under challenge before the Courts below. Under the said will, he gave suit items 1 and 2 to the plaintiff and distributed the other items among the other children. He also gave an extent of 40 cents of land to the 7th defendant. whom he described as his third wife. After his death on 1-11-1977, the present suit was instituted on 18th February 1978 by the first respondent in the two appeals for recovery of possession of items 1 and 2 of the I Schedule properties and moveables set out in Schedule VIII of the plaint. He also claimed future mesne profits at the rate of Rs. 200/- per month. His specific case in the plaint was that Jimmarammal executed the will dated 27-11-1971 bequeathing all her properties to her seven children and directed Prakasam Pillai to divide the properties and allot a share to each of the children. As regards the will of Prakasam Pillai, the averment in the plaint is that the said document was only a family arrangement or partition deed. The plaintiff stated in paragraph 6 of the plaint that he ratified the arrangement with respect to the extent of 40 cents allotted to 7th defendant and waived his claim over the same. The plaintiff alleged that the first defendant was in possession of the properties allotted to his share and was bound to deliver the same to the plaintiff. As regards movables, the plaintiff alleged that they belonged to Prakasam Pillai and according to the document dated 4-4-1977, they belong to the plaintiff. In the plaint, there was a specific allegation that Jimmarammal was a Hindu, though the plaint described the plaintiff and defendants 1 to 6 as Christians.

(3.) Defendants 1 and 3 filed a separate written statement in which they had raised an objection that the plaintiff was not entitled to maintain the suit in the absence of a probate of the will relied upon by him. It was stated by the defendants that Jimmarammal was not a Hindu, but she was originally a Buddhist and it was learnt that she had become a Christian later. A reference is made to the Death Register in which she was described as a Christian. It is also stated that the plaintiff had deliberately described Jimmarammal as a Hindu only for the purpose of avoiding the taking of a probate. The allegation regarding family arrangement was denied by the defendants. It was stated that Prakasam Pillai was not in sound and disposing state of mind when he executed the document dated 4-4-1977. It is not necessary to refer to the other contentions raised in the Written statement of defendants 1 and 3.