In cases of conflicting bequests in a will, the last intention of the testator, as expressed in the latest clause, prevails according to Section 88 of the Indian Succession Act.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT:

THE HONOURABLE MR. JUSTICE B.KEMAL PASHA THURSDAY, THE 15TH DAY OF JUNE 2017/25TH JYAISHTA, 1939 RSA.No. 1263 of 2016 ()

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AGAINST THE JUDGMENT AND DECREE DATED 30-07-2016 IN AS

236/2014 of ADDITIONAL DISTRICT COURT -IV, THRISSUR AGAINST THE JUDGMENT AND DECREE DATED 19-08-2014 IN OS 42/2008 of ADDITIONAL SUB COURT, IRINJALAKUDA APPELLANT/1ST APPELLANT/1ST DEFENDANT: --------------------------------------

MARY CHACKO, AGED 66 YEARS, W/O.LATE THEKKETHALA CHACKO, KORATTY VILLAGE, KORATTY DESOM, CHALAKUDY TALUK, PIN-680308 BY ADVS.SRI.RAJU SEBASTIAN VADAKKEKKARA SRI.S.KRISHNA KUMAR (MANGALAM)

RESPONDENTS/RESPONDENT & 2ND APPELLANT/PLAINTIFF & 2ND DEFENDANT:

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1. RINOY MARTIN, AGED 14 1/2 YEARS, S/O.LATE THEKKETHALA MARTIN CHACKO, VADAKKUMBHAGAM VILLAGE, VADAKKUMBHAGAM DESOM, ALUVA TALUK, REPRESENTED BY GUARDIAN-CUM-UNCLE PAULY JOSEPH, AGED 52 YEARS, S/O.LATE JOSEPH, VAZHAPPILLY HOUSE, CHENKAL, KALADY, PIN-683574.

2. ROSLIN @ LISSY, AGED 49 YEARS, D/O.LATE THEKKETHALA CHACKO, KORATTY VILLAGE, KORATTY DESOM, CHALAKUDY TALUK, PIN-680308.

R1 BY ADVS. SRI.DINESH R.SHENOY(CAVEATOR)

SRI.EBIN MATHEW(CAVEATOR)

THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 15-06-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

DSV/-

[CR]

B. KEMAL PASHA, J.

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Dated this the 15^th day of June, 2017

J U D G M E N T

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When two independent bequests are created in a Will in respect of the very same property, and when the said two bequests are totally irreconcilable, which one will prevail?

2. Late Chacko had executed Exhibit-A6 registered Will in respect of his properties, in the year 2001. In the first portion of Exhibit-A6 Will, it seems that he had made a bequest in respect of the properties scheduled in the Will, in favour of his wife Marykutty Chacko, who is the 1^st defendant. Along with that bequest, a condition was incorporated that in case, any property is left behind after the death of the testator and the 1^st defendant, the same shall devolve on their only son Martinmon. At the later part of the very same Exhibit-A6 Will, the testator again made an independent bequest to the effect that all his properties then in presenti and in futuro shall absolutely devolve on his son Martinmon on the death of the testator. The testator predeceased Martinmon. Thereafter, Martinmon also died on 20.03.2007, leaving the plaintiff as his only son. The plaintiff was then a minor. The mother of the plaintiff is mentally ill and incapable of taking care of herself and to look after and maintain the minor. The uncle of the minor was appointed by the District Court, Ernakulam as his guardian through Exhibit-A1 order dated 25.06.2010 in O.P. (Guardian) No.29 of 2009. After the death of his father, the minor, as plaintiff, represented by his uncle as his next friend, filed a suit for partition for getting the properties partitioned.

3. In the partition suit, the paternal grandmother of the plaintiff, who is the 1^st defendant herein, propounded a subsequent Will dated 22.11.2005, allegedly executed by the very same testator. When the minor and his next friend could realise that the grandmother of the minor, who is the 1^st defendant herein, had made attempts to propound a Will, as the last Will of the testator, which was not in fact executed by the testator, in order to make illegal claims over the properties in question, the minor had no other go than to file O.S.No.42 of 2008 before the Additional Subordinate Judge's Court, Irinjalakkuda, for declaring the said Will propounded by the 1^st defendant in the partition suit, as void and for declaration that the plaintiff has got title over the properties left behind by late Chacko, on the strength of Exhibit-A6 Will No.196 of 2001.

4. The suit was hotly contested before the trial court.

The trial court ultimately found that Exhibit-B1 Will, propou