JUDGMENT

ASOK KUMAR GANGULY, J. —

CIVIL APPEAL NO.7226 OF 2002

1.This appeal is directed against the judgment of the Division Bench of the Kerala High Court dated 6th December, 2000 rendered in Miscellaneous First Appeal No. 44 of 1990.

2.The dispute is over some of properties bequeathed by the Will dated 8.5.1967 by one Kakkassery Ippuru.

3.The material facts on which there is not much dispute are that the testator Ippuru’s first wife Kunhiri died, leaving behind daughter Molutty and son Vareed who died on 8.1.86. The wife and children of Vareed, since deceased, are the plaintiffs. The second wife of Ippuru, Kunjila, is the 7th plaintiff. She has two daughters Mariyamma, the 8th plaintiff and the other daughter is Padmini @ Cherichi, the defendant and respondent herein.

4.By a sale deed, being Exhibit-B1, dated 2.5.67, Kunjila, the second wife of Ippuru, sold to Ippuru half of her rights in respect of item Nos. 4 to 7 of the properties in the Will bequeathed by Ippuru. The other half of the property belonged to her son Vareed. Both the sale deed and the Will were registered on 8.5.1967, Ippuru died on 20.7.71.

5.In the Will of Ippuru, seven items of properties were bequeathed and out of which items 1 to 3 were given to one Molutty, daughter of the testator by his first wife. Items 4 to 7 of the properties were previously owned in equal moieties by Vareed and Kunjila, the second wife of Ippuru. Kunjila, as noted above, sold her share to Ippuru on 2.5.67 but the sale deed was registered on 8.5.67, the same day when the Will was registered.

6.After the death of Vareed on 1.8.1986, his wife and children appellants, 1 to 5 herein, jointly applied under Section 278 of the Indian Succession Act (the Act) for grant of Letters of Administration of the Will of the testator. That petition was contested by the Padmini @ Cherichi, one of the daughters of the testator’s second wife. Thus the proceeding became contentious and was registered as a suit being O.S. 10 of 1988 in the District Court, Thrichur.

7.The District Judge granted the letters of administration in respect of all the items of property in the Will. An appeal was taken to the High Court whereupon by the impugned judgment the High Court upheld the genuineness of the Will but modified the grant of letters of administration only to items 1 to 3. The High Court declined to grant the letters of administration in respect of items 4 to 7 and the reasoning given by the High Court inter alia was that on the date of the Will i.e. 8.5.67 the testator’s title to half of the property, namely over item Nos. 4 to 7 was not perfected. It was perfected only on the registration of sale deed, which is after the execution of the Will, even though the sale deed was executed on 2.5.1967. The correctness of the finding of the High Court is questioned in this appeal.

8.When the appeal was taken up for hearing on 25.2.2010, the learned counsel for the appellant urged that in view of provisions of Section 90 of the Act, the judgment of the High Court is erroneous. But that point was not specifically taken either before the High Court or in the Special leave petition. As such the learned counsel for the appellant prayed for leave to file an application for urging additional grounds.

9.Since the question is purely one of law and is arising from the records of the case and can be urged without raising any new factual controversy, this Court granted leave to urge the additional grounds. The respondents were granted liberty to file its response to the application for additional grounds.

10.Pursuant thereto, application for urging additional grounds was filed and the respondent, though was given opportunity to file response to those grounds, did not choose to do so. But the respondent’s counsel was heard on those grounds and he sought to controvert those grounds orally.

11.Admittedly, the parties are Christians and are governed by the Act. Along with the application for additional grounds a translated copy of the Wil