Aley Ouseph v. Ouseph Moni — 1990 DIGILAW 310 (KER)

JUDGMENT 1. 1st defendant in O.S. No. 27 of 1978 on the file of the Court of Subordinate Judge, Thodupuzha, is the appellant. Suit was for recovery of the plaint A schedule property with past and future mesne profits and for a declaration that document No. 1034 of 1972 of the Karikode Sub Registry Office, is void and not binding on the plaintiffs or the property. 2. Plaintiffs are children of Devassia Ouseph. Devassia Ouseph died on 8th November 1967 and his wife Thressia, the mother of the plaintiffs died on 23rd August 1969. Plaint schedule property belonged to Kora Devassia and his wife Moni on the strength of the joint purchase made by them as per Ext. B-2, dated 20th April 1964. The aforesaid Devassia Joseph is the son of Kora Devassia and Moni. Kora Devassia died and his wife Moni died on 23rd May 1972. 1st defendant is the daughter of Kora Devassia and sister of Devassia Joseph. 2nd defendant is her husband and 3rd defendant is her son. Kora Devassia and Moni executed a Will, dated 18th January 1965 evidenced by Ext. A-1. As per Ext. A-1 the property was bequeathed to Devassia Joseph. The Will was to take effect after the death of both the testators. According to the terms of Ext. A-1, during the lifetime of Kora Devassia, he was at liberty to alter the provisions of the Will and after his death his wife Moni was entitled to make alterations to the Will. After the death of Kora Devassia, Moni and Devassia Joseph jointly executed a gift deed and sale in favour of Devassia's wife Thressia and her minor children. Subsequently, Moni executed Ext. B-3, dated 15th April 1972 in favour of the 1st defendant. It is recited in Ext. B-3 that she was in exclusive possession of the property under the registered Will executed in 1965. It is the plaintiffs case, that since the property was disposed of by Moni and Devassia Joseph under Ext. A-2, Moni had no subsisting right to execute Ext. B-3 in favour of the 1st defendant and that document is void. Plaintiff's traced title to Ext. A-1 Will and Ext- A-2 sale and gift and sought for recovery of possession of the property on the strength of these documents, declaring that Ext. P-3 is void and inoperative. 3. A-2, Moni had no subsisting right to execute Ext. B-3 in favour of the 1st defendant and that document is void. Plaintiff's traced title to Ext. A-1 Will and Ext- A-2 sale and gift and sought for recovery of possession of the property on the strength of these documents, declaring that Ext. P-3 is void and inoperative. 3. 1st defendant filed a written statement admitting the relationship of the parties. She also admitted that the Will was executed by Kora Devassia and Moni in 1965 and the scheme of the Will was that the properties described therein would devolve upon Devassia Joseph after their death. The extent of the property so bequeathed was only 4 acres and 25 cents. She further averred that the plaintiffs' father died long before the death of Moni, that Moni disposed of 4 acres and 65 cents of land by executing Ext. P-3 sale deed and that therefore neither the legatee Devassia Joseph nor his legal representatives who are plaintiffs 1 and 2 obtained any right over the property. It was also contended that Ext. A-2 document was a sham transaction and it was not acted upon. 4. Defendants 2 and 3 filed written statement supporting the 1st defendant. 3rd defendant also contended that the plaintiff had no right over the plaint schedule properties. 5. On a consideration of the oral and documentary evidence in the case, the court below came to the conclusion that since the property was disposed of by Moni under Ext. A-2 the subsequent document executed by Moni transferring the property in favour of the 1st defendant was of no effect. It was argued before the court below that Ext. A-1 Will was not probated and the suit filed on the basis of Ext. A-1 Will is not maintainable. 6. In Para.10 of the judgment, learned Subordinate Judge has considered this aspect. Reference has also been made in the judgment to the averments in the written statement that the suit was not maintainable. The court below overruled the objection based on S.213 of the Indian Succession Act holding that Ext. A-1 is a joint Will and it was to take effect only after the death of both the testators, that the properties in Ext. The court below overruled the objection based on S.213 of the Indian Succession Act holding that Ext. A-1 is a joint Will and it was to take effect only after the death of both the testators, that the properties in Ext. A-1 Will were joint properties of the plaintiffs' grandfather and grandmother and that in the case of a joint Will intended to take after the death, will not be admitted to probate during the lifetime of either. It also observed that such a plea based on S.213 of the Indian Succession Act cannot be pressed into service by 1st defendant inasmuch as the 1st defendant herself claims right under the same Will. In that view of the matter, the court below negatived the plea based on S.213 of the Indian Succession Act and passed a decree declaring that the document No. 1034 evidenced by Ext. A-3 is void and not valid and binding on the plaintiffs and allowing the plaintiffs to recover possession of the plaint schedule property with mesne profits at the rate of Rs. 1,200 per year from 23rd May 1972 till recovery of possession of the property. 7. In this appeal, the main contention raised by the learned counsel for the appellant is that the finding of the court below that S.213 of the Indian Succession Act is not a bar to the present suit, is not correct. In order to appreciate the contention of the learned counsel, it is profitable to refer to the relevant part of S.213 of the Indian Succession Act which reads as follows: "No right as executor or legatee can be established in any Court of Justice unless a court of competent jurisdiction in India has granted probate of the Will under which the right is claimed, or has granted letters of administration with the Will or with a copy of an authenticated copy of the Will annexed." The scope of the section came up for consideration before the Supreme Court in Mrs. Hem Nolini Judah v. Mrs. Isolyne Sarojbashini Bose and others A.I.R. 1962 S.C. 1471 The Court observed: "This section clearly creates a bar to the establishment of any right under a Will by an executor or a legatee unless probate or letters of administration of the Will have been obtained. Hem Nolini Judah v. Mrs. Isolyne Sarojbashini Bose and others A.I.R. 1962 S.C. 1471 The Court observed: "This section clearly creates a bar to the establishment of any right under a Will by an executor or a legatee unless probate or letters of administration of the Will have been obtained. It is now well settled that k is immaterial whether the right under the Will is claimed as a plaintiff or a defendant. In either case S.213 will be 'a bar to any right being claimed by a person under a Will whether as a plaintiff or as a defendant unless probate or letters of administration of the Will have been obtained." This Court also had occasion to consider the scope of S.213 of the Act, in Kesavan v. Philomina 1982 K.L.T. 85 and in Devassia Mathew v. Mathai I.L.R. 1980 (1) Kerala 755. In both the above decisions, this court has followed the principle laid down by the Supreme Court in the decision cited supra. 8. A plain reading of the plaint would show that the claim is based on the Will evidenced by Ext. A-1. In Ext. A-2 also the right of Moni is traced to Ext. A-1 Will. In the circumstances, the court below was not right in holding that there is no bar under S.213 of the Indian Succession Act inasmuch the Will is a joint Will and that the defendant also had to trace title to the Will. 9. Learned counsel for the respondent contended that the decree declaring that Ext. B-3 is void does not call for any interference in any view of the matter. Learned counsel submitted that Moni had right to execute a gift deed or sale deed in respect of one half of the right of Moni during her lifetime and Moni and Devassia Joseph having executed jointly Ext. A-2, Moni was not competent to execute Ext. B-3 and therefore the declaration that Ext. B-3 is inoperative and void has to be upheld. Learned counsel for the appellant, on the other hand contended that Moni herself traced her right to deal with the property to Ext. A-1 Will and that being the position the bar based on S.213 of the Act would apply in respect of a plea rested on Ext. A-2 as well. B-3 is inoperative and void has to be upheld. Learned counsel for the appellant, on the other hand contended that Moni herself traced her right to deal with the property to Ext. A-1 Will and that being the position the bar based on S.213 of the Act would apply in respect of a plea rested on Ext. A-2 as well. The court below has not considered any of these aspects and in the circumstances I have no alternative but to set aside the judgment and decree and remit the matter to the court below for fresh consideration and disposal in accordance with law and in the light of the observations contained in this judgment and I do so. The appeal is disposed of as above. There will be no order as to costs. Parties will appear before the court below on 24th September, 1990.