Dismissed

Francis.K.I. v. R.I.Pascal

Kerala HC12 Sept 2012AS/1056/1998

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed an appeal challenging the Letters of Administration of the late K.J.Iype's estate. Upholding a registered Will, the Court found the Will was properly proved under Section 68 of the Evidence Act and held there was no evidence of undue influence, lack of capacity, or a subsequent cancelling Will.

What did the court decide?

The appeal is dismissed. No costs are awarded as between siblings in view of the order for costs issued by the court below.

Francis.K.I. Vs R.I.Pascal — Succession and Inheritance | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI

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WEDNESDAY, THE 12TH DAY OF SEPTEMBER 2012/21ST BHADRA 1934

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AS.No. 1056 of 1998 (D)

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----------------------OS.13/1995 of II ADDL.DISTRICT COURT,ERNAKULAM

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APPELLANT(S):

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FRANCIS K.I., S/O.LATE K.J.IYPE, KONNULLY HOUSE, NEAR TATA OIL MILLS, TATAPURAM PO, COCHIN-14.

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LARGUS K.I., S/O.LATE K.J.IYPE, KONNULLY HOUSE, TATA PIPE LINE ROAD, COCHIN.

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BY ADV. SRI.T.M.ABDUL LATHEEF

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RESPONDENT(S):

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K.I.PASCAL BYLON, S/O.LATE K.J.IYPE, KONNULLY HOUSE, NEAR TATA OIL MILLS, TATAPURAM PO, COCHIN-14.

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V.C.THRESSIA, D/O. LATE K.J.IYPE, ----DO---- ----DO----

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PHILOMINA, D/O.LATE K.J.IYPE, WIBINA, HOUSE NO.48/1002-A, MAMANGALAM, COCHIN-25.

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ELIZABATH, W/O.JOSE, D/O.LATE K.J.IYPE, MAVUNKAL HOUSE, MANDIRAM LANE, PALACE WARD, OLAYIL, KOLLAM-9.

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JOSEPH JORDANAS K.I., S/O.LATE K.J.IYPE, KONNULLY HOUSE, NEAR TATA OIL MILLS, TATAPURAM PO, KOCHI-14 EMPLOYED IN BRITISH PETROLEUM, PB NO.1699, DUBAI.

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(THE 5TH RESPONDENT IS REMOVED FROM PARTY ARRAY AT THE PETITIONER'S RISK AS PER ORDER DATED 26-08-2002 IN CMP.4153/2002)

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MR.PHILIP NERI K.I. , S/O.LATE K.J.IYPE, KONNULLY HOUSE, TATA PIPE LINE ROAD, COCHIN-18.

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MRS.MARY STELLA, W/O.JACOB & D/O.LATE IYPE, VALLANAT HOUSE, BANERJI ROAD, NEAR ASHIR BHAVAN, KOCHI-18.

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MRS.MARY GRACE, W/O.C.P.JOSEPH & D/O.LATE IYPE, CHAKKALACKAL HOUSE, SOUTH CHITTOOR, KOCHI-27.

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BY ADV. SRI.S.SREEKUMAR

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THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 12-09-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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THOTTATHIL B. RADHAKRISHNAN & A.V.RAMAKRISHNA PILLAI, JJ.

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A.S. No. 1056 of 1998 D

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Dated this the 12^th day of September, 2012

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J U D G M E N T

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~ ~ ~ ~ ~ ~ ~ ~ ~

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Thottathil B.Radhakrishnan, J.

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Propounding Ext.A4 as a Will executed by late K.J.Iype, his son applied for Letters of Administration. The widow of the deceased and 8 other children were arrayed as respondents. The original petition was contested by respondents 3 and 6; two other sons of the deceased. The contentious proceedings were thereupon numbered as original suit; tried, leading to the impugned judgment granting Letters of Administration with copy of Ext.A4 annexed, upholding that Will.

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The learned counsel for the appealing defendants 3 and 6 argued that the findings of the court below do not stand; that the Will has not been properly proved and that

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A.S. No.1056/1998

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: 2 :

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the deceased was of feeble mind and did not have testamentary capacity.

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Perusing the challenge set up by him to the Will, the contention of the 3^rd defendant is that the testament in question has not been honoured by the plaintiff, in so far as he has not paid `20,000/- to the 3^rd defendant as stipulated in the impugned Will. He pleaded before the court below that the plaintiff is not entitled to Letters of Administration since he is the executor by tenor of the Will and that the non payment of amounts due to the 3^rd defendant in terms of that Will amounts to a charge on the building covered by that testament.

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The 6^th defendant, who is the other appellant, pleaded that the making of the document is actuated by undue influence and the deceased had, in fact, executed yet another Will, cancelling Ext.A4, the Will in our hand, and that the plaintiff, who was staying in the family house, destroyed that second Will of the testator.

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A.S. No.1056/1998

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: 3 :

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PW2 is one among the two attestors to Ext.A4.

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He deposed in terms of the requirement of Section 68 of the Evidence Act. He is a Chartered Accountant. He is not a member of the family. He does not get any benefit under that Will. He spoke in categoric terms as to due execution of that Will by the testator and as to due attestation. We are in agreement with the finding of the court below that the due execution of the Will is proved through the testimony of PW2.

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We also see that Ext.A4 Will is a registered one. Nothing has been brought out by the appellants to dislodge the presumption available as to the regularity of the official acts in connection with the registration of that document.

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Further, the 6^th defendant's specific plea was that

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the execution of Ext.A4 is the result of undue influence exerted by the plaintiff. Such a plea is one which casts the burden of proof on that defendant to establish such plea as a ground on which that document would be voidable. There

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A.S. No.1056/1998

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: 4 :

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is no shred of evidence in that regard, though the testamentary capacity of the maker of that Will is proved to the satisfaction of this Court by cogent evidence, including that of PW2. The plea that the testator had executed yet another Will, cancelling Ext.A4; though not even shown by any materials; in our view, is destructive of the defence of the 6^th defendant that the testator lacked testamentary capacity.

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For the aforesaid reasons, we find no merit in the appeal and the appeal is dismissed. No costs in view of the order for costs issued by the court below as between siblings.

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Sd/-

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(THOTTATHIL B. RADHAKRISHNAN, JUDGE)

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Sd/(A.V.RAMAKRISHNA PILLAI, JUDGE)

aks/14/09

// True Copy //

PA to Judge

A.S. No.1056/1998

: 5 :

THOTTATHIL B. RADHAKRISHNAN & A.V.RAMAKRISHNA PILLAI, JJ.

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A.S. No. 1056 of 1998 D

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J U D G M E N T

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~ ~ ~ ~ ~ ~ ~ ~ ~

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12^th day of September, 2012

Francis.K.I. v. R.I.Pascal

Case brief

What is this about?

What did the court decide?

Francis.K.I. v. R.I.Pascal

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

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