2021 Supreme(Ker) 1057

IN THE HIGH COURT OF KERALA AT ERNAKULAM
P.SOMARAJAN, J.
Sreelatha, W/o.Vijayan - Appellant
Versus
Santha, D/o.Chellamma - Respondent
FAO (RO) No. 3 of 2021
Decided on : 10-12-2021

Point of Law: Will – Proof of - As against a person, who claims adverse title in derogation of testator, it is not at all necessary to prove the execution of a Will or Codicil by summoning atleast one of the attesting witnesses as mandated under Section 68 of the Evidence Act.

Headnote:

Evidence Act, Section 68 – Will Deed – Adverse possession - “hostile animus” -Suit for a permanent prohibitory injunction and a mandatory injunction - Declaration of title by adverse possession and limitation - whether it is necessary to prove a Will or a testament as against a stranger, who is not litigating under the testator, whether it is necessary to prove a Will or testament as mandated under Section 68 of the Evidence Act, when its execution is admitted or not specifically disputed, whether Section 58 of the Evidence Act is applicable in the matter of proof of such documents, whether the court can exercise its discretion under the proviso attached to that section so as to require the party to prove its execution inspite of admission and under what circumstance it can be exercised, who are the persons entitled to challenge the validity and execution of a testament or a Will and what actually amounts to “a person interested to deny” for the said purpose, besides the other issues pertaining to the dispute involved.

Finding of the Court:

Competency and entitlement either to admit a fact or to dispute it may have its own role to play, especially in the matter of a Will or Codicil, in which only the persons claiming under the testator or a “person interested” alone can exercise his entitlement either to deny or admit its execution. A total stranger has nothing to do with the execution of a testament or Will or devolution of successive interest thereunder, unless he is a person claiming under the testator or a “person interested to admit or deny its execution” such as a pendente lite transferee or a person litigating under any of legatees or a person acquired interest over it by any deeds, transfer etc, but will not include a person, who has set up adverse interest over the property in derogation of rights of testator – Principle behind it is that a testament would operate only with respect to the subsisting rights held by the testator over the subject of the Will and it is an internal matter to be agitated between the persons claiming under him viz., legatees, legal heirs and legal representatives, not available to a stranger, who claims adverse interest against the testator over the subject. The daughter, the 2nd defendant admittedly is not a person claiming under the testator and not a natural legal heir. She is not a legal representative of the deceased or the estate left out – only case raised is perfection of title by adverse possession and limitation, in derogation of the interest held by the testator. As such, she cannot be termed as “a person interested to deny” the execution of the testament. There is no scope for proving a Will in accordance with the mandate under Section 68 of the Evidence against a stranger, who is not claiming under the testator or having any interest to deny its execution. The expression “interested to deny its execution” shall not be construed as an interest over the property claimed by the party in derogation of the interest held by the testator over the property. Hence, the first appellate court is not justified in remanding the matter back to the trial court so as to prove the due execution of Ext.A12 registered Will as against the defendants in the suit - A secret animus to hold the property cannot be substituted in the place of an open hostile animus to hold the property in derogation of the rightful owner - existence of a fiduciary relationship between them is destructive to the hostile animus, if any claimed, unless constitute an act of ouster or open assertion of animus by the act of parties capable of giving notice - The 2nd defendant admittedly is the daughter of first plaintiff and the existence of a fiduciary relationship between the parties would normally give rise to a presumption of permissive possession unless a contrary intention is well explicit from the act of parties. Both the trial court and the first appellate court had not adverted to the abovesaid factors - There is failure on the part of the first appellate court to exercise its jurisdiction.

Result: Allowed