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IN THE HIGH COURT OF KERALA AT ERNAKULAM
A. BADHARUDEEN, J.
P.N. Ramaswami S/o Late P.R. Natarajan – Appellant
Versus
B. Seshambal W/o Late Balasubramanian – Respondent
R.S.A. No. 1090 of 2012
Decided On : 13-02-2024
Will - Partition - Indian Evidence Act, Indian Succession Act - Section 68, Section 63 - The court discussed the execution of Ext.B7 Will and found that defendants 4 and 5 failed to prove its execution in tune with the mandate of Section 68 of the Indian Evidence Act and Section 63(c) of the Indian Succession Act, eschewing doubtful circumstances surmounting the Will.
Fact of the Case:
The suit was filed for partition of the plaint schedule properties by the plaintiffs, who are the daughters of P.S. Ramaswami Pattar Pattamali, who died intestate in the month of May, 1977. The plaintiffs claimed partition of the plaint schedule properties to get 8 out of 20 shares to them. Defendants 4 and 5 attempted to grab entire plaint schedule properties by concocting documents and denying the share entitled to the plaintiffs.
Finding of the Court:
The court found that defendants 4 and 5 failed to prove the execution of Ext.B7 Will in tune with the mandate of Section 68 of the Indian Evidence Act and Section 63(c) of the Indian Succession Act, eschewing doubtful circumstances surmounting the Will.
Issues: The main issue was whether defendants 4 and 5 proved the execution of Ext.B7 Will in tune with the mandate of Section 68 of the Indian Evidence Act and under Section 63(c) of the Indian Succession Act, eschewing doubtful circumstances surmounting the Will.
Ratio Decidendi: The court held that the burden to prove execution of Will and to show that it came out of free will of the testator is only on the propounder. A Will obtained by fraud, coercion or importunity is void under Section 61 of the Act. The court also emphasized that when a Will is surrounded by suspicious circumstances, the burden to discharge is heavy on the person propounding the Will.
Final Decision: The Second Appeal failed and was dismissed. The court directed the parties to bear their respective costs and dismissed all pending Interlocutory Applications.
JUDGMENT :
A. BADHARUDEEN, J.
1. Defendants 4 and 5 in O.S. No. 92/2006 on the files of the Sub Court, Ottapalam are the appellants in this second appeal and they assail preliminary decree of partition passed by the learned Sub Judge and the decree and judgment in A.S. No. 78/2011 on the files of Additional District Judge, Ottapalam whereby the learned Additional District Judge confirmed the verdict of the trial court.
2. Heard the learned counsel for the appellants, the learned counsel appearing for the 5th defendant and the learned counsel appearing for 1st respondent, the 1st plaintiff. No others appeared.
3. The short facts in this case are as follows: Originally, the suit was filed for partition of the plaint schedule properties by the plaintiffs, who are the daughters of P.S. Ramaswami Pattar Pattamali, who died intestate in the month of May, 1977. The plaintiffs, 1st defendant, P.R. Sreenivasan and P.R. Natarajan are the children of P.S. Ramaswami Pattar Pattamali. According to the plaintiffs, defendants 4 and 5 attempted to grab entire plaint schedule properties by concocting documents and the demand for partition of the share entitled to the plaintiffs was denied. Accordingly, plaintiffs claimed partition of the plaint schedule properties to get 8 out of 20 shares to them. Similarly, the 1st and 2nd defendants would get 4/20 shares each and defendants 3 to 6 would get 4/20 shares.
4. Defendants 1 and 2 did not appear before the court. Accordingly, they were set ex-parte.
5. Defendants 3 to 6 filed written statement. According to defendants 4 and 5, defendants 1 and 2 had assigned their undivided right in the plaint schedule properties to defendants 4 and 5 by executing release deed Nos.3958/05 and 3959/05 of Kadambazhippuram S.R.O. Further, P.R. Natarajan-husband of defendant No. 4 and the father of defendants 5 and 6, executed a Will in favour of defendants 4 and 5 and given the share due to Natarajan in favour of defendants 4 and 5. Therefore, the right of the 6th defendant to get share in the plaint schedule property was denied.
6. The court below raised necessary issues and recorded evidence. The 1st plaintiff got examined as PW1 and Exts.A1 to A5 were marked on the side of the plaintiffs. DW-1 to DW-4 were examined and Exts.B1 to B7 were marked on the side of the defendants.
7. On evaluation of evidence, the trial court addressed the dispute mainly rest upon the legality of the Will marked as Ext.B7, alleged to be executed by Natarajan in favour of D4 and D5, then the trial court disbelieved the version of DW-2, the attesting witness and also found doubtful circumstances regarding execution of Ext.B7 and finally the trial court did not accept Ext.B7 Will. Accordingly, preliminary decree of partition was passed as under:
(2) Defendants 4 and 5 are liable to pay share of profit to the plaintiffs and D6. The quantum of the same shall be decided in the final decree proceedings.
(3) The house situated in the plaint schedule property shall be allotted to the defendants 3 to 5. They are liable to pay the value of the same to the other sharers according to their share.
(4) The parties are at liberty to file an application for passing final decree for partition.
(5) The cost of the suit shall come out of the estate.
(6) The suit is adjourned sine die.
8. Defendants 4 and 5 filed A.S. No. 78/2011 before the District Court, Ottapalam, and assailed the trial court verdict. The learned Additional District Judge as per judgment dated 14.05.2012 dismissed the appeal.
9. On hearing both sides, the Second Appeal stands admitted, formulating the following substantial questions of law:
The burden to prove the validity of a Will lies with the propounder, and failure to meet statutory requirements results in its invalidation.
The burden of proof for the execution of a Will lies with the propounder, who must establish compliance with statutory requirements, including the testimony of attesting witnesses.
The burden to prove the execution of a Will and the free will of the testator lies on the propounder. The propounder must establish attestation and remove suspicious circumstances affecting the genui....
Section 71 of Act 1872 has no application in a case where one attesting witness who alone had been summoned fails to prove execution of Will.
The Will must be proved by at least one attesting witness as per Sections 68 and 63 of the relevant Acts. Section 71 offers a safeguard but cannot replace compliance with the core requirements.
The necessity for proving a Will through attesting witnesses is emphasized, particularly that one attesting witness must be examined unless valid exemptions apply under the law.
Single attesting witness's testimony proving both attestations suffices for Will proof under Sections 63(c), Succession Act and 68, Evidence Act.
The court established that the burden of proving a will lies with the propounder, particularly when suspicious circumstances exist, and that the absence of key evidence can undermine the will's valid....
The court established that a Will must comply with statutory requirements to be considered valid, emphasizing the importance of proper attestation and execution.
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