Kandiyan Kousallia & Ors. Vs. Kandiyan Yesodha & Ors.
EmailAppeal: Civil Appeal No. 2955 of 1991
Petitioner: Kandiyan Kousallia & Ors.
Respondent: Kandiyan Yesodha & Ors.
Apeal: Civil Appeal No. 2955 of 1991
Judges: A.P. MISRA & Y.K. SABHARWAL, JJ.
Date of Judgment: Aug 08, 2000
Head Note:
HINDU LAW
Indian Succession Act, 1925
Sections 207, 208, 192 – Will – Partition suit – Claim based on Will dated 29.9.79 – Challenged on grounds of proper mental state and suspicious circumstances – Both grounds upheld and Will rejected – High Court also affirming the same – After death of testator, application under Section 192 filed by claimants and on contest by wife only, Will up
Held:
High Court finding lack of sight, impairment of hearing and loss of memory – If there was no application of mind. Held that order upholding Will under Section 192 was not binding upon others. Judgment shows application of mind. There was no asset given even to wife. Will not proved. Hence no merits in appeal. (Paras 3, 4)
Held –
JUDGEMENT:
ORDER
1. Heard learned Counsel for the parties.
2. The present appeal is directed against the judgment dated 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 had two sisters Madhavi and Janaki. Both of them predeceased Govindan. The plaintiff is one of the daughters of Madhavi. Madhavi had another daughter, the first defendant and a son Mukundan. Mukundan’s widow and son are defendant nos. 3 and 4. Defendant nos. 5 to11 are the children of the first defendant and defendant 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 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 Will is surrounded with suspicious circumstances, hence liable to be set aside. The trial court rejected the Will on both the grounds. The High Court confirmed it.
3. 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 required to do. He submits, after the death of Govindan, an application was made by the appellants under Section 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 the later proceedings, it proceeded ex parte. The witnesses in these proceedings were not cross-examined before passing the order. The Court upheld the Will and the said appellants’ application was 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 upon 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 that there is no provision in the Will for the wife. The submission is, if the wife doubted the Will, she would have seriously contested the proceedings for the grant of possession as aforesaid under Section 192. Not only then, but also thereafter, she lived for two years but did not challenge the said Will.
4. We have gone through the trial court judgment. We find, the court has properly scrutinised the circumstances and considered the relevant evidence for drawing its inference against the execution 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 evidences 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 executant, 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.
5. 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.
1. Heard learned Counsel for the parties.
2. The present appeal is directed against the judgment dated 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 had two sisters Madhavi and Janaki. Both of them predeceased Govindan. The plaintiff is one of the daughters of Madhavi. Madhavi had another daughter, the first defendant and a son Mukundan. Mukundan’s widow and son are defendant nos. 3 and 4. Defendant nos. 5 to11 are the children of the first defendant and defendant 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 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 Will is surrounded with suspicious circumstances, hence liable to be set aside. The trial court rejected the Will on both the grounds. The High Court confirmed it.
3. 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 required to do. He submits, after the death of Govindan, an application was made by the appellants under Section 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 the later proceedings, it proceeded ex parte. The witnesses in these proceedings were not cross-examined before passing the order. The Court upheld the Will and the said appellants’ application was 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 upon 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 that there is no provision in the Will for the wife. The submission is, if the wife doubted the Will, she would have seriously contested the proceedings for the grant of possession as aforesaid under Section 192. Not only then, but also thereafter, she lived for two years but did not challenge the said Will.
4. We have gone through the trial court judgment. We find, the court has properly scrutinised the circumstances and considered the relevant evidence for drawing its inference against the execution 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 evidences 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 executant, 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.
5. 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.
