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IN THE HIGH COURT OF KERALA AT ERNAKULAM
A. BADHARUDEEN, J.
Rajagopal, S/o. Parameswaran Pillai – Appellant
Versus
Venugopal, S/o. Parameswaran pillai – Respondent
RSA No. 890 of 2014
Decided on : 20-05-2024
Will Deed - Property Dispute - Indian Succession Act, Indian Evidence Act - The court discussed the validity of Will deeds, the burden of proof, and the requirement of attesting witnesses under Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act. The court also considered the suspicious circumstances surrounding the execution of the Will and the need for the propounders to remove such doubts. The judgment emphasized the importance of conscious application of mind by the appellate court and the duty to record findings supported by reasons on all issues.
Fact of the Case:
The plaintiff filed a suit to declare a Will deed as void and to hold another Will deed as the last Will of the deceased. The trial court declared the disputed Will deed as void, but the District Court reversed the decision.
Finding of the Court:
The first appellate court correctly appreciated the evidence and held that the disputed Will deed was genuinely executed, and there were no doubtful circumstances to disbelieve its due execution. The circumstances found by the trial court as doubtful were not sufficient to doubt the due execution of the Will.
Issues: The main issues were the validity of the disputed Will deed, the burden of proof, and the suspicious circumstances surrounding its execution.
Ratio Decidendi: The burden to prove the execution of a Will and to remove suspicious circumstances lies on the propounders. The appellate court has the duty to apply its mind to all issues raised before it and to record findings supported by reasons. The examination of at least one attesting witness is mandatory to prove the due execution of a Will.
Final Decision: The Second Appeal was dismissed, and the decision of the first appellate court was upheld. All parties were to bear their respective costs.
JUDGMENT :
This appeal arises out of decree and judgment in A.S.No.197/2010 on the files of Additional District Court-IV, Kollam, whereby the learned Additional District Judge set aside the verdict of the trial court in O.S.No.243/2001 on the files of the Principal Sub Court, Kollam. The appellant is the plaintiff in the suit and respondents are the defendants and their legal heirs.
2. Heard the learned Senior Advocate Sri P.B.Krishnan appeared for the plaintiff/appellant; learned Senior Counsel Sri Nandakumara Menon appeared for the original 3rd defendant and Advocate Chelur Sreekumar, who appeared for defendants 5 and others.
3. I shall refer the parties in this appeal as `plaintiff’ and `defendants’ referring their status before the trial court, hereafter for easy reference.
4. Perused the verdicts under challenge and the records thereof.
5. As on 26.08.2014, my learned predecessor admitted this appeal on questions of law Nos.2, 3 and 6 raised in the Memorandum of Appeal. The same are as under:
“2. Is not the Lower Appellate Court wrong in shifting the burden to the plaintiff to prove the validity of Ext.A4?
3. Is not Lower Appellate Court correct in interfering with the well reasoned judgment of the trial court without reference to the suspicious circumstances behind the execution of Ext.A4?
6) Whether the Lower Appellate Court is correct in holding that Ext.A4 is genuine especially in view of the provision therein for the 6th defendant/4th respondent herein since on 7.6.1997 the date of Ext.A4 the marital relationship between the 6th defendant and the daughter of the plaintiff/respondent became strained as can be seen from Ext.A5 and A6?”
6. The plaintiff filed the suit to declare that Will Deed No.24/1997 of Sasthamcotta S.R.O as void and Will deed No.3/1988 of Karunagappally S.R.O as the last Will of one Mr.Parameswara Pillai and to hold that title and possession over plaint B schedule property shall be subject to the stipulation in Will deed No.3/1988. Prohibitory injunction against enjoyment of B schedule property also sought for.
7. The contention raised by the plaintiff is that Ext.A4 (Ext.B1) Will deed No.24/97, alleged to be executed by Parameswaran Pillai, is not valid since at the time of execution of the above Will, Parameswaran Pillai was suffering from neuro diseases and other mental and physical infirmities. That apart, Ext.A4 Will is in the midst of doubtful circumstances.
8. Defendants 1 to 7 jointly filed written statement and supported the legality of Will deed No.24/97 and bank upon the same.
9. The trial court ventured the matter. PWs 1 to 6 were examined and Exts.A1 to A6 were marked on the side of the plaintiffs. DW1 to DW3 were examined and Exts.B1 to B4 series were marked on the side of the defendants. Apart from that, Exts.X1 to X4(a) were also marked. Finally the trial court declared Ext.A4 Will deed 24/97 of Sasthamcotta S.R.O as void and also declared that Ext.A3 Will Deed No.3/1988 of Karunagappally S.R.O as the last Will deed of Parameswaran Pillai. When the above verdict was challenged before the District Court, the learned District Judge reversed the said finding and dismissed the Suit.
10. While supporting the verdict of the trial court and impeaching the judgment of the appellate court, the learned Senior Counsel for the plaintiff Sri P.B.Krishnan taken this Court to the findings of the trial court to justify declaration of the Will deed No.3/1988 of Karunagappally S.R.O marked as Ext.A3 as void and to hold that the judgment of the appellate court is absolutely erroneous. It is pointed out by the learned Senior Counsel Sri P.B.Krishnan relying on the decision reported in [2001 (1) KLT(SN) 74 : 2001 2 MhLJ(SC) 786 : 2001 2 MLJ 69 : 2001 3 MPHT 71 : 2001 3 RCR(Civ) 243 : 2001 (1) Scale 712 : (2001) 3 SCC 179 : 2001 (1) SCR 948 : 2001(1) Supreme 642], Santosh Hazari v. Purushottam Tiwari (Dead) by Lrs. that the first appellate court has no power to set aside a well considered judgment of the trial court
AI
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