Lilly George Vs. Francina James and ors. - Court Judgment

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- - the evidence of pws 2 to 4 clearly proves the execution of ext. we, accordingly overrule the said contention as well.p.n. ravindran, j.1. this appeal arises from the decree and judgment passed by the court of the additional sub judge, north paravur in l.a.r. no. 62 of 1999. the appellant was claimant no. b therein. by the impugned judgment, the court below held that the appellant is not entitled to claim apportionment of the compensation.2. aparcel of land (0.2455 hectares)sihiated in survey no. 170/1, aluva west village belonging to sri. vareed, s/o. raphel was acquired for the purpose of cochin refineries lid. before the land acquisition officer, sri. vareed, the land owner appeared and filed a claim statement claiming that he is the absolute owner of the property and that his daughters have no right over the acquired land. his daughters smt. lily george, smt. francina james, smt. jaseentha james and smt. elcy xavier and his son-in-law sri. stephen john, also filed a claim statement before the land acquisition officer stating that sri. vareed is old, infirm and is not in a position to look after his affairs, that he is under the influence of his sons and that, as the legal heirs of sri. vareed, they are entitled to an equal share in the land value. in view of the dispute between the parties, the land acquisition officer deposited the amount awarded as land value in court as required under section 31(2) of the land acquisition act, 1894. the reference was taken on file and numbered as l.a.r. no. 62 of 1,999. while l.a.r. no. 62 of 1999 was pending, sri. vareed passed away on 30-8-2000 and thereupon by order passed on 5-7-2002 in i.a. no. 621/2001 additional claimants g to k, who are his sons, were impleaded. later, sri. raphel, additional claimant-g passed away thereupon his legal heirs, additional claimants l to o were impleaded as per order dated 19-11-2002 passed on i.a. no. 2139 of 2002.3. in the reference court, additional claimants g to k, who are the sons of sri. vareed, filed a claim statement to the effect that their father had executed ext.a1 will on 28-2-1985 bequeathing the acquired property to them, that on the death of the testator on 30-8-2000 the property devolved on them and that by virtue of the will, they are the persons entitled to receive the amount lying in deposit in the court. claimant-g to k also claimed enhancement of the land value. additional claimants l to o who are the legal heirs of claimant-g filed a statement admitting the will and supporting the stand taken by claimants g to k. in the reference court, claimant-h was examined as aw1. the second attesting witnesses to ext.a1 will was examined as pw2, the wife of the first attesting witness to ext.a1 will was examined as aw3 and the document writer was examined as aw4. no evidence was adduced on the side of claimants b to f who contested the validity of the will. the reference court on an analysis of the evidence in the case held that ext.a1 will was validly executed and has been properly proved. in that view of the matter, the reference court held that claimants g to k alone are entitled to get the land value deposited by the land acquisition officer. additional claimants l to o were held entitled to get the share of additional claimant-g. the appellant has in this appeal questioned the correctness of the judgment and decree passed by the reference court.4. we have heard the learned counsel on either side. sri. t.i. abdul salam, the learned counsel appearing for the appellant contended that ext.a1 will has not been validly executed and that as the testator passed away on 30-8-2000 after the land was acquired, the subject matter of the bequest ceased to exist and therefore the will cannot operate to exclude the daughters, from claiming an equal share in the compensation. the learned counsel further contended that as the will has not been probated or letters of administration obtained, the claim put for warded by claimants g to k based on ext.a1 will is liable to be rejected.5. we have considered the submissions made at the bar. as regards challenge to ext.a1 will, the only contentions raised is that the deceased did not execute any will in respect of his properties. it was argued that, therefore, the execution of the will should have been properly proved. ext.a1 is a registered will which was executed and registered on 28-2-1985. the testator will which was executed and registered on 28-2-1985. the testator passed away on 30-8-2000. no suspicious circumstance regarding the execution of the will has been put forwarded by the appellant or the other daughters of the testator who are claimants c to f. they have also not chosen to adduce any oral evidence. the evidence of pws 2 to 4 clearly proves the execution of ext.a1 will by the testator. in the absence of any suspicious circumstance alleged or proved, it is not possible to hold that the execution of ext. a1 will is shrouded in mystery. no circumstance has been brought to our notice to show that ext. a1 will is not genuine. we therefore hold that challenge to ext.a1 will is without any merit. we accordingly overrule that contention. the mere fact that the testator died after the land was acquired and the award was passed does not in any way affect the right of the legatees under the will to claim the land value awarded by the land acquisition officer. if the claimant had passed away prior to the award, the legatees under me will would have been entitled to receive the compensation in respect of the land bequeathed in their favour. we find no reason to disinherit them merely for the reason that the testator died only after the property bequeathed was acquired. we, accordingly overrule the said contention as well.6. we shall now deal with the last contention that as the will has not been probated the bar under section 213 of indian succession act will apply. the indian succession act was amended with effect from 14-3-1997. ext.a1 will was executed on 28-2-1985. the testator passed away on 30-8-2000. in syndicate bank v. soji chacko 1998 (2) klt 25 p.k. balasubramanyan (j)(as his lordship then was) considered the effect of amendment to section 213 of the indian succession act, 1925, by the indian succession act (kerala amendment) act which came into force on 14-3-1997. the learned judge held that from the date of the amendment, the need for obtaining a probate or letters of administration of a will executed by an indian christian is not to be insisted upon. it was held that the benefit of the amendment is available to those litigants who invoke the jurisdiction of the court to establish aright under a will subsequent to 14-3-1997.7. in cherichi v. ittianam 2001(1) klt 415 a division bench of this court held as follows:11. what is said in section 213 of the act is a procedure regarding establishment of right as executor or legatee under a will. what is stated in section 213 of the act becomes relevant when such right is sought to be established in any court of justice and the necessity of getting probate or letters of administration has to be decided with reference to the time when the right as executor or legatee is sought to be established. the law applicable at that time has to be taken into consideration and regarding the procedure for establishment of right as executor or legatee, there is no relevance to the date of execution of the will or the date on which the proceedings in the court of justice commenced. even if the amendment came into force during the pendency of the proceedings, when the right as executor or legatee is sought to be established in that proceedings, when the right as executor or legatee is sought to be established in that proceedings after the amendment, in the case of christians it cannot be insisted that probate or letters of administration would have been obtained for establishing that right. even though section 213 was amended, the other provisions in the act regarding granting of probate or letters of administration remain unchanged and hence it cannot be said that after the amendment brought about to section 213 of the act, there is no need for granting probate or letters of administration.9. in view of the authoritative pronouncement by a division bench of this court, there is no merit in the contention raised by the learned counsel for the appellant that ext.a1 will cannot be relied on or passed into service for the reason that it has not been probated or letters of administration obtained. in our opinion as the will took effect only after 14-3-1997 and the right under the will was sought to be established thereafter, the court below was right in holding that section 213 as amended will apply to ext.a1. the will was also duly proved before the reference court.10. we, therefore hold that there is no merit in this appeal. the appeal is accordingly dismissed. no costs.