JUDGMENT :- One Mariakannammal, an Indian Christian had two sons and no daughters, of whom her first son Xavier predeceased her leaving behind him two sons and a son Joseph had no male issues and had only two daughters. She executed a will on 10-8-1941. Thereafter, after making certain changes, she executed another will dated 20-10-1949. In 1954, she executed a codicil dated 15-8-1954 to the said will. Again on 22-12-1958 she executed another will, the registration copy of which is marked as Ex. A1. On 17-7-1959 she made a codicil, the registration copy of which has been marked as Ex.A2.

2. According to the respondents, confirming the said will and codicil, she executed two settlement deeds marked as Exs. A5 and A6 in favour of Joseph Catherine giving immediate effect to the legacy provided to her under the will. She also executed another settlement deed dated 10-10-1966, marked as Ex. A7. According to the respondents, the will and the codicil executed on 22-12-1958 and 17-7-1959 had been referred to in the above said settlement deeds. She died on 25-3-1967. So, the will came into effect from the said date. After complying with the estate duty formalities, the respondents filed a petition in O.P. No. 3 of 1985 on the file of the District Court, East Tanjore and it was transferred to Sub Court, Mayiladuthurai and remembered as O.P. No. 46/1985, seeking to issue probate of the will and the codicil, copies of which are marked as Exs. A1 and A2.

3. The 3rd appellant in this C.M.A. filed a counter and the appellants 1 and 2 adopted the same. In the said counter, it is stated that Mariakannammal was not in good health and not in a sound disposing state of mind at the time of execution of Exs. A1 and A2 by Marikannammal. There were absolutely no reason for Mariakannammal to provide more properties for her predeceased son's son alone. According to the appellants, she had no intention to disinherit her daughter Thangamani and provide very little to the heirs of her second son (Joseph Nadar). According to them, the wills dated 10-8-1941 and 22-12-1958 and the codicil thereon were not executed by Mariakannammal and they are not true and valid. The said documents were not executed by Mariakannammal and they are not true and the codicil thereon were not executed in sound disposing state of physical and mental condition of Mariakkannammal. According to them, Mariakkannammal's physical energy was very diminished right from 1940 and her mental power had also been impaired, and she was incapable of making the will. Francis and Stephen, the respondents 2 and 3 managed to benefit and enrich themselves over the other legitimate heirs to get such a will contrary to the intention of the testatrix. Even with respect to the building constructed by Francis in 'D' schedule properties, it is the case of the respondents that the same was done from and out of the income and resources of common properties of Mariakannammal. They have also pointed out regarding the inordinate delay of many years to apply for probate, and on that basis it is stated that the will and codicil are not genuine. They have denied the statement that the original wills are with the appellants herein. It is further stated that the appellants are suppressing the original documents, as, if they are produced, they could not substantiate the contention of the appellants that the will and the codicil were executed by Mariakannammal.

4. Appreciating the pleadings, both oral and documentary, the lower Court found that the will and codicil are genuine and so the petitioners before it are entitled to probate in respect of Exs. A1 and A2. Aggrieved, the respondents 1 to 3 in the O.P. filed C.M.A. No.172/89, and this Court remanded the case to the lower Court for fresh disposal , and again the lower Court granted probate accepting the case of the respondents. So the respondents 1 to 3 in the O.P. filed C.M.A. No. 1020/90 and one Margaret filed C.M.A. No. 1072/90.

5. Learned Senior Counsel appearing

Click Here to Read the rest of this document