The main legal point established in the judgment is the burden of proof on the propounder to establish the due execution and validity of a Will, while also addressing and removing suspicious circumstances.

JUDGMENT :

This appeal arises from the judgment and decree dated 15.9.2012 passed by the II Additional District Court, Ernakulam, in O.S.No.27 of 2011. The proceedings were initiated under Section 276 of the Indian Succession Act 1925. The defendants resisted the original petition denying the execution of the Will, and thus, the proceedings were converted into a suit invoking Section 295 of the Indian Succession Act. The dispute in this matter centres around the existence, execution and validity of a Will stated to have been executed by Valliyamma @ O.K.Valliyammal.

The relevant pleadings

Plaintiffs

2. Smt.Valliyamma died on 16.8.2010. Her husband Sri.A.Thankappan pre-deceased her. His date of death is 20.12.1988. Late O.K.Valliyammal was a Confidential Assistant in the Judicial Department. She settled at Cheranelloor. While residing there, on 3.6.2010 she executed a Will. It was attested by Sri.T.A.Thomas and M.Elayaperumal. The plaintiffs are the legatees under the Will. Late Valliyamma executed the Will voluntarily with her own free will. As per the Will, she appointed plaintiff No.1 as the executor of the Will. Defendants

3. The late Smt.O.K.Valliyammal did not execute a Will as pleaded. After the death of her husband she had been residing in Thiruvananthapuram along with Smt.Rajamma, who was the sister of her husband. Later, she shifted her residence to YWCA, Ernakulam. She resided at Sree Ramakrishna Asramam for eight years. From there she went to the house of plaintiff No.1 at Cheranelloor. Plaintiff No.1 would have coerced Valliyamma to execute the Will. The Will is a product of undue influence and fraud. The late Valliyamma did not put her signature in the Will projected. It is quite unnatural that the testator divested the properties in the name of the plaintiffs alone. The defendants are the legal heirs of the late O.K.Valliyammal. The late Valliyammal had no intention to execute a Will. She had no mental fitness to execute such a Will. Plaintiff No.1 withdrew huge amounts from the deposits in the name of the late Valliyamma.

4. The trial Court framed the following issues:-

1. Did late Valliammal execute the Will dated 3.6.2010 ?

2. Is Will dated 3.6.2010 a genuine Will ?

3. Whether probate in favour of the 1st plaintiff as claimed is liable to be granted ?

4. What shall be the order as to costs ?

Evidence

5. PWs 1 to 3 were examined, and Exts.A1 to A3 were marked on the side of the plaintiffs. Ext.X1 was marked as Court exhibit.

The findings of the court below :

(1) The plaintiffs succeeded in proving the existence, execution and validity of the Will.

(2) The plaintiffs are, therefore, entitled to the certificate of probate as prayed for.

6. Defendant No.3 challenges the decree and judgment passed by the trial Court. Submissions

7. The learned counsel for the appellant/defendant No.3 submitted the following:-

1) Ext.A2 Will has not been duly tendered in evidence.

2) The plaintiffs failed to establish the due execution of the Will in terms of Section 63(c) of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act.

3) The following suspicious circumstances surrounding the execution of the Will have not been satisfactorily explained by the plaintiffs:-

a) The testator excluded the natural legal heirs.

b) Plaintiff No.1 had active involvement in the creation of the Will.

c) The testator died almost two months after the alleged execution of the Will.

d) Ext.A2 Will remained in the custody of plaintiff No.1.

e) Plaintiff No.1 had withdrawn cash using the ATM Card issued in the name of the testator after her death.

4) Both the attesting witnesses were not examined by the propounder.

5) The Court below wrongly put the burden on the defendants.

8. The learned counsel for the respondents/plaintiffs submitted the following:-

The plaintiffs successfully established the execution of the Will. The plaintiffs removed the suspicious circumstances projected by the defendants.

9. The points that arise for consideration are