IMPORTANT POINTS
• Gopalan was a person having acquaintance in English language and in normal practice he used to scribe his signature and execute documents in English. So the will deed was not in vernacular language does not constitute a suspicious circumstance
• Section 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under Sections 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a court of law. Similarly, Sections 59 and 63 of the Indian Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this section indicate what is meant by the expression “a person of sound mind” in the context. Section 63 requires that the testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a will.

1. These two appeals arise out of the Judgment and decree in O.S. No. 238/91 on the file of the Additional Sub Court, Kollam. RFA No. 523/2009 is at the instance of the plaintiff. RFA No. 552/2010 is preferred by the defendants 2 and 3. The parties are referred to as per their status in the original suit.

2. Briefly stated the facts leading to filing of the appeals are as follows:

The plaintiff and the defendants 2 to 6 are the children of late Sri. Gopalan and Smt. Nalini, the first defendant. (Smt. Nalini expired during the pendency of the suit). The defendants 2 and 3 are the sons of this couple and the plaintiff and the defendants 4 to 6 are their daughters. The plaint schedule properties belonged to Sri. Gopalan. He died intestate on 29.9.1989 and thereby the properties devolved upon the plaintiff and the defendants. Thus the plaintiff is entitled to 1/7th share over the properties. A schedule property is 69.750 cents of land with a residential building in Asramam north at Kollam. The building was constructed by the plaintiff as permitted by her father. B schedule is a land with so many buildings, a brick factory, machinery etc. at Mysore. C to F schedule properties are the movables. The plaintiff is holding joint possession of the plaint schedule properties as inherited from late Gopalan. The plaintiff is seeking equitable relief with respect of the residential building and site and to allot 1/7th share at the time of the final decree. The defendants 1 and 2 are residing in the building in the B schedule property and the movables are enjoyed by them and hence C and F schedule properties are liable to be put in auction and the plaintiff is entitled to get 1/7th share of the sale proceeds. D schedule lorry was sold for a sum of Rs. 3 lakhs and out of the same, Rs. 60,000/- was due to Catholic Syrian Bank as the financier of the lorry. The second defendant had settled the account and had appropriated the balance amount. So also, the E schedule machines were sold by him for a sum of Rs. 2,35,000/- and out of the same Rs 1.3 lakhs due to the bank was settled and the balance was taken by him. Since the plaintiff is entitled to get share over the plaint schedule properties she approached the defendants but they were not amenable for partition even after the mediation talk. They filed two caveat petitions, in the court of Civil Judge at Mysore and now it is learnt that they are resisting the claim raised by the plaintiff on the strength of a will deed alleged to have been executed by Sri. Gopalan. The alleged will was fraudulently created by defendants 1 and 2 as Gopalan was not having the physical or mental capacity and sound disposing state of mind so as to execute the same on 1.9.1989. Sri. Gopalan studied only upto 3rd standard in Malayalam Medium, but the will is seen drafted in English language. In fact the defendants 1 and 2 are trying to evict the plaintiff forcibly from A schedule property. Hence, the suit for partition of the plaint schedule properties as well to allot her 1/7th share and for settlement of accounts with respect to the sale proceeds of D to F schedule properties.

3. The first defendant resisted the suit raising various contentions. The allegation that her husband Sri. Gopalan died intestate on 29.9.1989 is absolutely false. In fact, he executed a will deed on 1.9.1989 bequeathing his rights over the properties and assets in her favour. The allegation that the plaintiff is entitled to get 1/7th share over the entire properties is not correct. Sri Gopalan had gifted 1 acre 4.75 cents of land with a tile factory at Asramam, Kollam to the plaintiff by executing a document on 10.12.1975. It was executed by exerting undue influence by the plaintiff over Sri. Gopalan. The defendants 2 to 6 are entitled only for the remaining assets which are only negligible when compared to the property in the gift deed. Sri. Gopalan had a debt of Rs. 5 lakhs and it was settled by disposing of the D schedule lorry and E