CHINNAPPA PILLAY Vs. KAILASAM PILLAY

JUDGEMENT

(1.) In this appeal two alleged testamentary papers of one Vankatachalam Pillai, deceased, who died on 26 August 1914 are in question. They are dated, respectively, 24 January 1913 and 2 January, 1914 and are marked Exhibits A-1 and A. The latter is propounded by a minor Kailasam Pillai, son of Venkatachalam, by a concubine of his, Velliammai by name. This Kaillasam Pillai applied to the District Court of South Arcot for leave to prove A and for the issue to him of Letters of Administration with this Will annexed A-1, the alleged earlier Will, is propounded by respondents Nos. 3 and 4, who are two of the three sons of Thillainayagam Pillai, brother of the testator, who was adopted into another family. The learned District Judge found for the genuineness of both these papers, A and A-3, and admitted them both to Probate. He also found that the earlier Will was not revoked by the later. Letters of Administration were granted jointly to the widow of deceased (respondent No. 2) and respondents Nos. 3 and 4.

(2.) Three questions are raised on this appeal. (1) The genuineness of the Wills. (2) The revocation of the earlier by the later. (3) Inferential intention to revoke.

(3.) As to the first point, Mr. A. Krishnaswamy Iyer for the appellants, the divided brother of the testator and his son, frankly stated that be could not say the Wills were forgeries, i, e., were not in the handwriting of the testator. We think it sufficient to say that we are satisfied from the evidence that the Wills A 1 and A are in the handwriting of the testator, We were then asked to refuse Letters of Administration on the ground that the history of the custody of these two documents was not satisfactory and was not such as to remove all doubt as to their genuineness. The story of the concubine, who is the only witness who saw the testator write and sign the Wills, is that the two Wills were given to her. After the death she put them into a box and gave them to her servant from whom 5 respondent took the Wills. Fifth respondent is the third of the sons of Thillainayagam Pillai mentioned above. There is evidence that after cremation the 3 and 5 defendants and one Vadivelu Pillai (P. W. No. 2) and Monigar Rattan Pillai (P. W. No. 4) met, and opened the box and took out the Wills and read them. The Wills were actually produced by Vadivelu, Pillai in the Court of the District Munsif of Mannargudi in Original Suit No. 47 of 1915 filed by Valliammai to recover these Wills and other documents. On the other hand, 1 respondent's (1 appellant here) account is that deceased gave him a box containing mortgage and other documents and that when the testator died there was no box by his side as described by the plaintiff's witnesses. The District Judge who has examined the evidence with care has come to the conclusion that the account given by 1 appellant cannot be accepted and a further examination of the evidence does not lead us to a different conclusion. We, therefore, agree with the District Judge that there is no reason why these paper writings, A and A-1, should not be received as the testamentary papers of the deceased.