- (1.) The appellant is the first defendant in Suit OS No. 199/68 on the file of the Court of District Munsif, Payyoli. The trial Court decreed the suit. On appeal, the decree, to the extent of the property covered under Ex. B-12 a will dated 1-11-1955 executed by Lakshmi Amma, the mother of the appellant, was not upheld and the said properties were ordered to stand excluded from partition. On second appeal, the High Court reversed the decree of the appellate Court in that behalf and confirmed the decree of the trial Court in Second Appeal Nos.753/75 and 977/75 dated 23-11-1977. Thus this appeal by special leave.
(2.) Sri Nambiar, learned counsel for respondent, contended that respondent Nos. 2, 4 and 11 have since expired and their legal representatives having not been substituted, the appeal stood abated. We find no force. Admittedly, before their deaths, they sold their respective shares by registered sale deeds in favour of other respondents. So, by operation of Order 22 Rule 10 C. P. C, their respective interest devolved by transfer on the respondents who are already on record. Therefore, there is no need to bring the Lrs. of the deceased on record or to transpose them as legal representatives.
(3.) The real question with which we are concerned in this appeal is with regard to the validity of the will Ex. B-12. Admittedly, Lakshmi Amma had her share under a maintenance arrangement, Ex. A-2 dated 17-12-1941, under which Scheduled-A property was given to her and two sons, namely, the appellant and one Kunjappan Nambiar, who predeceased his mother Lakshmi Amma. In the written statement, the appellant had specifically propounded the registered will executed by his mother, Ex. B-12. The trial Court, as pointed out by the High Court, saw some suspicious features. First, in normal circumstances mother would not have deprived the daughters on her demise to inherit her estate; and secondly, the will, though a registered one, suspicious features created in the case were not removed even by the evidence of DWs-1 and 2, - there being enormous benefit under the will and no proof of the signature, nor proper proof of thumb impression of DW-2.;