GEORGE Vs. VARKEY
LAWS(KER)-2003-7-38
HIGH COURT OF KERALA
Decided on July 25,2003

GEORGE Appellant
VERSUS
VARKEY Respondents

JUDGEMENT

- (1.) THIS appeal is filed against the judgment refusing grant of Letters of Administration under the Indian Succession Act, 1925. The petitioners / plaintiffs are the appellants. Varkey Varkey, father of fifth plaintiff, defendants 1 to 4 and late Mariakutty, mother of defendants 5 to 1 died on 19.3.1990. He had executed and registered Ext. A2 Will on 20.6.1987 bequeathing certain properties to plaintiffs 1 to 3 who are the sons of fifth plaintiff after cancelling Ext. A10 Will. Plaintiffs applied before the Court below for granting Letters of Administration with a copy of the said Will annexed. In the alternative they pleaded for granting Letters of Administration on the basis of Ext. A10 Will also. Defendants 1 and 10 contested the application.
(2.) IN this appeal the first defendant (first respondent herein) alone is contesting the matter. The other defendants, despite receiving notice, did not appear before this Court to oppose the appeal. According to the written statement filed by the contesting first respondent, Ext. A2 Will dated 20.6.1987 has not been duly executed and contended that deceased had earlier executed Ext. A10 Will. The Court below found that finger prints in Exts. A2 and A10 were that of the testator. But Ext. A2 is not a valid Will as due attestation was not proved. The Court below found that Ext. A10 though properly executed was revoked as it was scored off and the suit was dismissed. A cross appeal was filed by the first defendant questioning the findings in the impugned judgment in so far as it is against him. Four issues were framed by the court below which are: 1. Whether the Will bearing No. 42 of 75 is Genuine? 2. Whether the testator had executed both the Wills Nos. 42 of 75 and 57/87 while the testator was in a sound disposing state of mind of his own accord after fully understanding the nature of the dispositions made in the said Wills Nos. 42 of 75 and 57/87 and the said Wills were duly attested? 3. In case the execution of Will No. 57 of 1987 is proved would it amount to revocation of Will No. 42 of 75? 4. What is the proper order as to costs and reliefs?
(3.) THE main questions to be decided in the appeal are whether Ext. A2 Will is genuine and whether it is a properly executed Will with testamentary capacity and proper attestation. Ext. A2 is perfectly regular on its face as it appears that testator has signed the Will in the presence of two witnesses who also signed in the presence of each other. It is also to be considered whether presumption omnia rite esse acta as observed by the Court of Appeal in Wright v. Saderson (1984 IX PD 149) and as held by the Privy Council in Lloyd v. Roberts (12 Moo. P.C. 158) applies. As regards the facts of the case are concerned, the testator Varkey Varkey married thrice. Ext. A2 Will was executed on 20.6.1987 and he died on 19.3.1990 at the age of 92, after about three years of the alleged execution of Ext. A2 Will. During his life time all his children (daughters and sons) were married. It has also come out in evidence that apart from the properties in the Will he has gifted large part of his immovable properties to all his sons including the fifth plaintiff and defendants 1 and 2. It has also come out in evidence that defendants 1, 3 and 4 and predecessor of defendants 5 to 11 were children of the first wife of the testator. His second wife died immediately after the marriage. Thereafter, he again married. The second defendant as well as the fifth plaintiff (PW 3) are the sons of the testator through his last wife (referred to as second wife also occasionally). PW 3 with his family were living with the testator till his death and in old days he and his family were looking after him. Fifth plaintiffs mother died in 1972. The contesting defendant was residing separately from 1954 in another place gifted by the testator. The second defendant, another son, was also living separately. The contesting defendant as well as the second defendant were given more than 14 acres of land by the testator when he was alive. Ext. A4 is a registered gift deed gifting some landed property to the son of the contesting defendant by the testator in 1972. Ext. A5 is the registered gift deed gifting about 13 acres of landed property to the first defendant by the testator. The depositions of PW 3, PW 5 and DW1 the contesting defendant would show that all his sons were given properties. The testator already married away his daughters during his life time. It was the custom of Syrian Christians in Travancore - Cochin area to give landed property to sons and give amount considering the share of the property to daughters at the time of marriage as can be gathered from the provisions of the Travancore - Cochin Christian Succession Act and as spoken to by PW 3, the custom was to give residential house to the younger son. What is bequeathed in Ext. A2 will is the residential property and the surrounding area to the family of PW 3, who was the younger son. What was given under Ext. A2 is only 4 Acres and 67 cents. The testator had 55 Acres of land and except this property other properties were gifted to his children when he was alive. DW1 also deposed that he is living separately from 1951 onwards and after 1971, after the death of the mother of PW 3, he visited his father only two or three times in an year. According to him, they were not having very cordial relationship, probably due to instigation of PW 3 and his mother. He deposed as follows: The above background show that there is nothing irregular or suspicious circumstances in testator bequeathing the balance property remaining with him to the family of PW 3 who was looking after him from 1954 till his death in 1990.;


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