IMPORTANT POINTS
There is nothing in Section 63 of the Act or Section 3 of the Transfer of Property Act to indicate that the attesting witness shall necessarily be one who maintains previous knowledge or acquaintance with the testator/testatrix. The previous knowledge, association or information etc., of the attesting witness about the testator may be a relevant fact when the identity of the executant of the Will is in issue. Necessarily in such cases the test of previous acquaintance with the testator could be relied on as a circumstance to assess the genuineness of the Will.

JUDGMENT :

T.V. ANILKUMAR, J.

1. The appellants are defendants 1 to 3 in O.S.No. 663/2008 on the files of Principal Sub Judge, Irinjalakuda and being aggrieved by the preliminary decree for partition passed on 30.10.2010 in favour of plaintiffs who are the respondents herein, this appeal is preferred before this Court. The main challenge advanced by appellants opposing partition claimed by the respondents was that the suit items which originally belonged to Kochouseph were not partible in view of alleged execution of Ext-B1 Will dated 05.12.2003 being in their names. The appellants are the wife and two sons of the deceased Kochouseph. The plaintiffs/respondents are the two daughters of the deceased.

2. Sri. Kochouseph, the predecessor of parties died on 29.05.2004 at the age of 81. There is no dispute that if Kochouseph died intestate the appellants and respondents would succeed to him under the provisions of the Indian Succession Act 1925 (hereinafter referred to as 'the Act'). The respondents/plaintiffs demanded partition of the property after the death of Kochouseph, alleging that joint possession of the property caused inconvenience to their enjoyment. Appellants resisted the demand claiming under Ext.B1 Will and according to the respondents, on coming to know of the Will from the mouth of the appellants, they made enquiry and found that it was not a genuine document. Therefore, respondents filed the suit claiming 4/12th share as co-owners of suit items contending that Ext.B1 was cooked up.

3. Ext.B1 Will revealed that there was another Will marked as Ext.B5 formerly executed and registered by the testator on 29.12.1990 in Sub-Registry, Mala, bequeathing suit items exclusively in favour of appellants. This Will was cancelled and with slight modifications, Ext.B1 was executed.

4. According to the respondents, Exts.B1 and B5 Wills are not genuine and were fraudulently created. They contended that on the alleged date of execution of Ext.B1 Will, their father was completely bed ridden taking liquid food without being able to move about and depending completely on others. It was said that he needed support of others in every respect since he was suffering from dementia also after he had suffered a stroke in the year 1989. Further, he was 81 also on the date of alleged execution of Ext.B1 last Will. It was also contended by respondents that the stroke affected the left side of his body and he was partially paralysed. According to them, there was no reason to execute a testament in favour of the appellants denying respondents any share in the property of the deceased because the father loved and treated all his heirs alike. The respondents claimed that at the time of marriage, they were given only 10 sovereigns of gold and further there were occasions when they helped father financially also. Therefore, by all means execution of Exts. B1 and B5 Wills were not genuine at all.

5. The 3rd appellant who is the mother and other appellants-sons filed joint written statement resisting partition claimed. Both the Wills were executed by Kochouseph out of his testamentary capacity, according to them. He was in sound state of mind and was able to take independent decision. He was fully healthy till 10 days prior to his death in Kuzhikkattussery Maria Theresa Hospital. He died of heart attack even though he was during his last days suffering from Pulmonary Asthma. Appellants admitted that Kochouseph suffered a mild stroke in 1989 and he was admitted in Lisie Hospital, Ernakulam and treated. He was stated to be completely healthy and to have never suffered any impairment of mental faculty disabling him from forming rational judgment on the nature and quality of action affecting his interest in property. It was contended that he executed Ext.B5 Will while being in sound disposing state of mind and later cancelling the former Will, he executed Ext.B1 Will on 05.12.2003 after effecting a few modifications regarding allotment of property among appellan