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K.A.ABDUL GAFOOR
Acho Dominic – Appellant
Versus
Xavier – Respondent
Key Points: - The Will Ext. B13 is presumed to be duly executed and attested under Section 90 of the Evidence Act due to its age and proper custody, and this presumption extends to testamentary capacity in this case [15000049710006][15000049710011][15000049710012]. - The lower appellate court erred in requiring probate under Section 213 of the Indian Succession Act for an Indian Christian; the amendment making probate unnecessary is applied prospectively to pending appeals, allowing relief based on the Will [15000049710012] (!) (!) [15000049710013]. - As the defendant proved the Will and probate is not required due to the amendment, the suit for partition is decreed in terms of the Will, and the plaintiffs are not entitled to partition [15000049710013] (!) .
K.A. Abdul Gafoor, J.
The legal representatives of the sole defendant in a suit for partition are the appellants in this case. The plaintiffs, the children of the deceased defendant's sister Thresiamma filed a suit for partition of the properties held by her father Acho. A notice was issued demanding partition and separate possession of the properties. The defendant objected to that demand by a reply notice stating that the said Acho had executed a Will on 15.6.1921. In terms of the said Will the plaintiffs' mother and thereby the plaintiffs did not have any right to seek partition. This dispute led to the suit. The defendants set up the defence based on the Will which is Ext. B13 as referred to in the trial Court judgment. The trial court found that the Will was never proved as enjoined by law and S.69 of the Evidence Act by examining any of the attesting witnesses. So the will was not accepted and acted upon by the trial court. The trial court held that the parties were entitled for partition of the properties left by the said Acho in equal shares.
2. The parties belong to erstwhile Cochin State. They are Christians. The properties sought to be partitioned is within the
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