A testator without rights over a property cannot execute a valid Will, affirming the necessity for judicial scrutiny in testamentary succession.

JUDGMENT

These appeals are at the instance of the addl. defendant Nos. 7 and 8 in O.S. No. 501 of 2004 before the Munsiff Court, Thiruvalla, a suit for declaration and partition of the plaint schedule properties.

2. The facts are not under serious dispute. The plaintiffs and defendants claim under one Eappen Mathulla and Thankamma Eappen who died on 17.01.1976 and 26.04.2004 respectively. The parents of Thankamma Eappen, i.e. Aleyamma Kurian and Kurian have two children namely Thankamma Eappen and K. K. Varghese. K. K. Varghese died on 14.08.1997. The plaintiffs and defendants have another brother named K. E. Kurian and his whereabouts are not known. Item Nos. 1 to 5 of the plaint schedule originally belonged to Aleyamma who died on 20.09.1987 and the properties devolved upon Thankamma Eappen and K. K. Varghese and after their death, the properties were devolved upon the plaintiffs and the defendants jointly. Item Nos. 6 to 9 properties belonged to the father of the plaintiffs and defendants and Eappen Mathulla and by death of Eappen Mathulla and Thankamma Eappen, their properties were also inherited by the plaintiffs and defendants. K. K. Varghese was a mentally unsounded person. Plaintiffs or the 5^th defendant have not been given any assets or dowry at the time of their marriage and there was an understanding between the parties that share in the family property will be given at the time of partition.

2.2. Item Nos. 1 to 5 devolved upon Thankamma Eappen by virtue of Will Deed No. 7/1973 of Mannar SRO executed by Kurian and Aleyamma Kurian and as per the terms of the Will, the properties were originally settled in favour of K. K. Varghese. Since K. K. Varghese was a mentally ill person and his wife deserted him, as per the Will, the sister of K. K. Varghese obtained right over Item Nos. 1 to 5 properties. The plaintiffs contended that they along with the defendants 1 to 6 are entitled to 1/9 share each in the plaint schedule property. Though the plaintiffs demanded partition, defendants 1 to 4 were not amenable to it. After the death of Eappen Mathulla, 99 cents of nilam belonged to him was sold in 1978 by Thankamma Eappen and defendants 1 to 4 with the full consent and knowledge of plaintiffs and the 5^th defendant for repayment of the debt incurred by Eappen Mathulla. The 4^th defendant in the meantime claimed absolute title over the plaint schedule items 1 and 5 on the basis of a Will No. 30/1988. According to the plaintiffs, the Will is invalid because he had no right to get the bequeath in terms of the Will. Thus the plaintiffs sought declaration that Will Deed No. 30/1988 of SRO, Mannar and the sale deed executed by the 4^th defendant in favour of defendants 7 and 8 based on the said will is not binding upon them.

2.3. The suit was resisted by the defendants by contending that the plaintiffs have no right to claim partition of the property because of Ext. A4 Will. Since the 4^th defendant had absolute title, he had the necessary power to alienate the property to defendants 7 and 8. It was also contended that if the plaintiffs had any right over the property, the same was lost by adverse possession. The defendants 3 and 4 filed a separate written statement in the same line. Additional defendants 7 and 8 filed a written statement contending that they are bona fide purchasers and are entitled to protect their possession over the property covered by the sale deeds.

2.4. The suit was initially decreed and on appeal, the matter was remanded for impleading the subsequent purchasers who are now impleaded as addl. defendants 7 and 8. After remand, the Trial Court framed an additional issue as to, whether the plaintiffs are entitled for the declara