Kandiyan Kousallia and Others vs Kandiyan Yesodha and Others

Heard learned Counsel for the parties.

The present appeal is directed against the judgment, D/-21st February, 1991 in A. S. No. 62 of 1991 of the High Court dismissing the appeal and confirming the trial Court judgment in a suit filed. for partition by the first Respondent. The disputed property pertains to one Govindan who died on 8th December, 1981. The Plaintiff is the niece of Govindan. Govindan has two sisters Madhavi and Janaki. Both of them predeceased Govindan. The Plaintiff is one of the daughter of Madhavi. Madhavi had another daughter, the first Defendant and a son Mukundan. Mukundan''s widow and son are Defendant Nos. 3 and 4. Defendants Nos. 5 to 11 are the children of the first Defendant and Defendants Nos. 12 to 14 are the children of 6th Defendant. The 2nd Defendant is the son of Janaki, another sister of Govindan. The main issue of adjudication is the challenge of the Will executed by Govindan on 29th September, 1979 on f the basis of which Appellants claim their right. This Will is challenged by the Plaintiff on two grounds that the executor on the date of its execution was not in the proper mental state of mind and the W*g is surrounded with suspicious circumstances hence liable to be set aside. The trial fruit rejected the Will on both the Bounds. The High Court confirmed it.

Mr. T.L.V. Iyer, learned senior counsel submits that the appellate Court has merely paraphrased the decision given by the trial Court and has not applied its mind hence the case was not examined properly as appellate Court is squired to do. He j submits, after the death of Govindan, an application was lade by the Appellants u/s 192 of the Indian Succession Act, at which time only wife was the heir of the deceased Govindan and she contested it by denying the said Will, but it seems in fie later proceedings it proceeded ex parte. The witnesses in these proceedings were not cross-examined before passing the order. The Court upheld the pi and the said Appellants'' application has allowed. We may make it clear so far this order, admittedly, could not bind the Plaintiff in view of Sections 208 and 209 of the Indian Succession Act. However, learned Counsel for the Appellants submits he is not relying it as a binding order but only to dispel the suspicion drawn by the Courts below in the execution of this document. One of the reasons for not accepting the said Will by Court below is the there is no provision in the Will for the wife. The submission is, if the wife doubted the Will, she would have serious contested the proceedings for the grant Possession as aforesaid u/s 192. Not only then but also thereafter she lived for two years but did not challenge the said Will.

We have gone through the trial court judgment. We find the Court has properly scrutinised the circumstances and considered the relevant evidence for awing its inference against the execute of the said Will. The only submission is that the High Court while considering the appeal has not applied its mind and it being the Court of fact, it should have considered all the evidence on the record. We do not find its findings are lacking in this regard. The High Court has considered all the circumstances, which is placed before us. The High Court as a Court of fact records the impairment of the mental power of the executants, which is based on evidence of his loss of sight, impairment of hearing and failure of memory. Then High Court has drawn its inference by concurring with the finding of the trial Court. We do not find that any error is committed which calls for our interference. The High Court has further considered even the question, whether wife was provided with something in the Will or not. The only possible submission which was raised on behalf of the Appellant is, para 6 of the Will recites that something was given to the wife. However, the appellate Court records that no . evidence is led to show the ownership of any such asset having been given to the widow.

In view of this, we do not find any error in the same. Hence we hold the present appeal has no merits. It is accordingly dismissed. Costs on the parties.