Decided on October 05,1967

Chithalan Appellant
C. Ammu Amma Respondents


- (1.) These are appeals filed against the decision of Raghavan, J. disposing of three Original Petitions which relate to the estate left behind by one A. A. D. Luiz, a Roman Catholic Anglo Indian Christian who died on 27-12-1962 at Ernakulam. The Original Petitions are: (1) O. P. 1479 of 1963 filed by Mrs. Dorothy Luiz (Nee McLeod) claiming herself to be the widow of the deceased for the grant to her of letters of administration of the deceased's estate on the ground that A. A. D. Luiz died intestate. (2) O. P. 705 of 1964 filed by Dr. M. V. Francis Chithalan for the grant of probate of the will Ex. P 1 dated 26-12-1961 alleged to have been executed by the deceased, claiming himself to be the executor therein. (3) O. P. 826 of 1964 filed by C. Ammu Amma for the grant of probate of the will Ex. D 1 dated 2-12-1960 alleged to have been executed by the deceased, claiming herself to be the executrix therein. All the original petitions were tried jointly and disposed of by a common judgment. Common evidence for all the petitions was recorded in O. P. 705 of 1964. The learned Judge holding Ex. D 1 to be genuine and Ex. P 1 not genuine, directed the issue of probate of Ex. D 1 to C Ammu Amma thereby allowing O. P. 826 of 1964. In consequence the learned Judge dismissed original petitions 1479 of 1963 and 705 of 1964. A. S. 98 of 1966 and A. S. 333 of 1966 arise out of O. P. 705 of 1964. A. S. 98 of 1966 is filed by Dr. M. V. Francis Chithalan the petitioner therein while A. S. 333 of 1966 is filed by Doris Stanley Luiz (wife of S. P. Luiz) one of the beneficiaries under Ex. P 1. A. S.172 of 1966 arises out of O. P. 826 of 1964 and is filed by the 3rd respondent therein, namely S. P. Luiz. No appeal is filed by Mrs. Dorothy Luiz against the dismissal of O. P. 1479 of 1963.
(2.) A. A. D. Luiz (referred to hereafter as Tony) died suddenly of heart failure during the early hours of 27-12-1962 at Pallath House, Ernakulam leaving behind his considerable assets valued by the Collector at Rs. 902676/-. Tony is I the eldest of the three sons of Chevalier Cherupunathil Paul Luiz and Mrs. Mary P. Luiz. Paul Luiz died on 22-11-1937 while Mrs. Mary P. Luiz died on 15-11-1958. The two brothers of Tony are A. W. P. Luiz (referred to hereafter as Alfy) and S. P. Luiz (referred to hereafter as Stanley). S. P. Luiz married Doris Stanley Luiz (referred to hereafter as Doris), in 1940. Tony married Dorothy Edith Cicilia McLeod (referred to as Dorothy in the rest of the judgment) on the 22nd January 1936. Before her marriage with Tony, Dorothy was studying for her M. A. in the Presidency College, Madras and was residing in the Queen Mary's College Hostel. During her stay in the hostel she came into contact with C. Ammu Amma (referred to hereafter as Ammu) who was also then having her studies in Madras and in course of time they became good friends. Even after her marriage, whenever Dorothy visited Madras in the company of her husband both of them used to call on Ammu. Ammu used to accompany Dorothy and her husband to Coonoor for the season during some years and she stayed with them in Coonoor during the season in 1937, 1938 and 1939. In the course of their stay at Coonor, Tony developed a fancy for Ammu and subsequent to 1939, Tony used to visit Ammu in Madras without taking with him Dorothy. Thereby the relationship between Ammu and Tony became very intimate with the result that a daughter was born to them on 12-10-1942 whom they named Marianna Teresa Luiz, also called Viju, in the Scudder Memorial Hospital, Ranipet where Ammu was admitted for her confinement. In August 1942, Ammu became a Catholic but she continued to retain her old name, Ammu, though as Dw. 1 she deposed that her Christian name is Teresa. In December 1942, Ammu was transferred to the Government Training School at Calicut. Thereafter she was working in some schools for girls in Tirur and in Palghat during the years 1945 to 1951. From 1952 till her retirement in 1962, she was employed in the Government Girls High School, Calicut and at the time of her retirement in 1962 she was the headmistress of the said school. As Tony's attachment towards Ammu deepened, his relationship with Dorothy began to deteriorate especially since a few years prior to 1945. Dorothy filed Ex. P 39 petition on 14-4-1945 in the District Judge's Court, Coimbatore against Tony for judicial separation, the ground being that Tony committed adultery with Ammu. Tony also had filed a similar petition against Dorothy almost at the same time in the Anjaikaimal District Court in the former Cochin State. These proceedings resulted in the execution of Ex. XXI dated 18 8 1945 a deed of separation and Ex. XX also of the same date a release deed, between them. On the date when Tony died, Stanley was away in Wynad. Dorothy was then permanently staying at Wynad. Though both of them were informed immediately about the death of Tony, Stanley returned to Ernakulam in time to attend the funeral which took place at, Ernakulam on the evening of 27-12-1962. But Dorothy did not come, even though Stanley compelled her to accompany him to C Ernakulam. As already stated, O. P. 1479 of 1963 was filed by Dorothy for the issue in her favour of letters of administration of the assets of Tony on the ground that he died intestate and that she is one of his heirs at law. The petition was filed on 30-7-1963. Notice was ordered on 7-8-1963 to the only relations named in the petition, namely Alfy and Stanley. Stanley filed C. M. P. 7564 of 1964 on 20-11-1963 therein for the appointment of a receiver to take possession of the assets of the deceased. After notice the petitioner was allowed by Joseph, J., by the order dated 13-12-1963 and on 14-12-1963 the learned Judge appointed Sri K. M. Joseph (D. W. 14) who is an advocate of this court, to be the receiver. D. W. 14 in the course of assuming management of the estate prepared an inventory of the movables in the building called Luiz Hall, in Broadway, Ernakulam, forming part of Tony's estate. He filed his Report No. II in court on 3-3-1964. This report shows that while preparing the inventory of the articles found in the eastern most room in the building on 1-3-1964, D.W. 14 took into custody Exs. P 1, D 3, D 4. D 5 and D 34 from the steel trunk kept there and produced the same in court on 3-3-1964 along with his Report No. II. Dr. M. V. Francis Chithalan (referred to as Dr. Chithalan hereafter), appointed sole executor under Ex. P 1, therefore filed O. P. 705 of 1964 on 17-3-1964 for the grant of probate of Ex. P l. O. P. 826 of 1964 was filed by Ammu on 25-3-1964 for the grant of probate of Ex. D l. In that petition she has also alleged that Tony had executed the will Ex. D 2 dated 18-5-1964 and deposited C the same in the District Registrar's Office at Ernakulam.
(3.) The arguments on the original petitions before the learned single Judge were concluded on 20-10-1965. Before pronouncing judgment the learned Judge by proceedings dated 29-10-1965 caused the issue of notices under S.479A(1) of the Code of Criminal Procedure to Pws. 1 and 2 who are stated to be the attestors to Ex. P 1, D. Ws. 10 and 11 who are stated to be the attestors to Ex. D 1, DW. 14 the receiver who produced Ex. P l in court and Pw. 19 (Stanley) and also the issue of notice under S.476(1) of the Criminal Procedure Code to Dr. Chithalan, to show cause why action should not be taken against them for perjury and fabrication of false evidence. Dr. Chithalan and Stanley filed Civil Appeals 871 of 1966 and 1003 of 1966 in the Supreme Court against the order of the learned single Judge passed on 29-10-1965, directing the issue of show cause notices to them, after obtaining special leave. Though an ex parte order of interim stay of further proceedings in O. P. 705 of 1964 was passed by the Supreme Court at the instance of Dr. Chithalan, it was subsequently modified on 19-1-1966 confining the stay only to the further proceedings consequent on the issue of the show cause notices. The judgment which is the subject matter of the appeals before us was therefore pronounced by the learned Judge on 25-2-1966. By this judgment the learned Judge has again directed the issue of notices under S.479A(1) and 476(1) of the Criminal Procedure Code to the parties mentioned above. The appeals before the Supreme Court were allowed by the order dated 30-3-1967, and the order dated 29-10-1965 was quashed in view of the direction for the issue of fresh notices in the judgment under appeal. In the special leave petitions and in the appeals filed before the Supreme Court, Dr. Chithalan and Stanley had complained against the conduct of the trial of the original petitions before the learned Judge. Their Lordships of the Supreme Court observed in their order of 30-3-1967 thus: "We express no opinion on any other matters raised in these appeals for it appears that there are appeals pending before a Division Bench of the High Court and those matters can properly be raised in those appeals." We are making particular reference to these observations of the Supreme Court as they were relied on by the learned counsel for the appellants to point out the necessity of considering the grounds repeated before us complaining about the conduct of the trial before the learned Judge.;

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