SURYANARAYANAMURTHI Vs. SURAMMA

JUDGEMENT

(1.) This is an appeal from a judgment and decree of the High Court of Judicature at Madras, dated 26th August 1943, which reversed a judgment and decree of the Court of the Subordinate Judge at Amalapuram, dated 27 September 1940.

(2.) On 9 March 1938, respondent 5 as plaintiff brought a suit for partition against his father, defendant 1, his mother, defendant 3 who is respondent 1, and his elder brother, the appellant, defendant 2. On 19th February 1940, whilst the suit was pending, the father died, leaving him surviving, his widow, respondent 1, his two sons, the appellant and respondent 5, and four daughters, respondents 2, 3, 4 and 6. The daughters were brought on record as the legal representatives along with the widow of the deceased.

(3.) Four days before his death, namely, on 15 February 1940, defendant 1 (who will hereinafter be referred to as "the testator") made a will which, if valid, affects the shares in which the interest of the testator in the joint family property will be divisible between surviving members of the family. The appellant challenged the fact of the execution of the will and alleged, in the alternative, that the testator was not of testamentary capacity when he made his will. The Subordinate Judge raised an issue: "Whether the will set up by defendants 3 to 7 is true, valid and binding." In answer to the issue he held that the execution of the will was proved, but that it was not proved that the testator was in a sound disposing state of mind, and that the will was not valid and binding. In appeal the High Court agreed with the finding that the will was duly executed, but disagreed with the view of the lower Court as to the testamentary capacity of the testator, and made a declaration that the testator was in a sound disposing state of mind and that the will was valid and binding.