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P.SOMARAJAN
Raveendran Nair Son of Narayanan Nair – Appellant
Versus
Raman Nair Son of Narayanan Nair – Respondent
Key Points: - The judgment holds that a legatee or a person interested in the bequest cannot be an independent attesting witness under Section 68, and mere examination of such a legatee does not satisfy Section 68 requirements (!) (!) (!) (!) [15000461250008]. - It emphasizes that attestation for a Will must meet Section 63 conditions (a), (b), and (c), with at least one independent attesting witness, failing which the execution is suspicious (!) (!) (!) [15000461250007][15000461250008]. - The court remanded for possible examination of other attesting witnesses and permitted amendment of pleadings, with the appeal allowed in part and directions to proceed afresh in the Trial Court (!) . - The specific issue involved three Wills (Exts. A1, A2, A4); Ext. A4’s execution was challenged on the basis of attestation and independence of witnesses [15000461250001][15000461250003] (!) . - The judgment cites that absence of an independent attesting witness defeats compliance with the evidentiary attestation mandate under Section 68 of the Evidence Act [15000461250008]. - The court’s ultimate order confirms partial allowance of the appeal and setting aside of lower judgments, with remand for new proceedings (!) .
The appellant, the defeated plaintiff in O.S.No.22/1991 of the Munsiff's Court, Kanjirapally, and in A.S.No.273/1995 of Addl. District Court, Kottayam, came up with this appeal.
2. The dispute centered around execution of three Wills Exts.A1, A2 and A4 left out by the father of plaintiff. In Ext.A1, the plaintiff is the sole legatee regarding the plaint schedule property. In Ext.A2 there is some modification. In Exhibit A4 Will, an entirely different deposition was made by the testator, hence under challenge. The plaintiff sought declaration that Exhibit A4 Will is invalid, and for declaring his title over the plaint schedule property based on Exhibit A1 Will. A permanent prohibitory injunction was also sought.
3. Both the Trial Court and the First Appellate Court rejected the contention raised by the plaintiff, but upheld the contention of first defendant and found that Exhibit A4 Will is genuine and that it is the last testament of the deceased.
4. There are two attesting witnesses to Exhibit A4 Will – one Raman Nair and one Raghavan Nair. Raman Nair is none else, the first defendant. That Will was executed in favour of the children of the first defendant by giving major p
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