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IN THE HIGH COURT OF KERALA AT ERNAKULAM
THE HONOURABLE MR. JUSTICE SATHISH NINAN, THE HONOURABLE MR. JUSTICE JOHNSON JOHN
Adv.Ramani, D/o Moolayil Janaki Amma & Koravandatt, Adv. Nanu Menon – Appellant
Versus
Radha D/o Moolayil Janaki Amma & Koravandatt, Adv. Nanu Menon – Respondent
RFA No. 67 of 2015
Decided on : 25-07-2024
WILL AND SUCCESSION - PARTITION AND INHERITANCE - KERALA JOINT HINDU FAMILY SYSTEM (ABOLITION) ACT, 1977; INDIAN EVIDENCE ACT, SECTIONS 63, 65, 66, 67, 68 - The court discussed the admissibility of secondary evidence regarding the alleged Wills and the requirements for proving a Will under the Indian Evidence Act. It emphasized the necessity of primary evidence and the burden on the propounder to dispel any suspicious circumstances surrounding the execution of the Wills. The court found that the second defendant failed to prove the execution of the Wills and the genuineness of the release deed, leading to the conclusion that she was entitled only to a share in the property along with her siblings.
Fact of the Case:
The suit was for partition of properties belonging to Adv. Nanu Menon and Janaki Amma, with the plaintiff and defendants being their children. The second defendant claimed exclusive rights based on alleged Wills executed by her parents and her sister, Dr. Leela. The plaintiff contested the validity of these Wills, asserting that they were not executed properly and that Dr. Leela lacked the capacity to execute them.
Finding of the Court:
The trial court found that the second defendant did not prove the existence or validity of the alleged Wills or the release deed. It ruled that the second defendant was entitled only to a share in the property along with her siblings, as the evidence presented did not satisfy the legal requirements for proving the Wills.
Issues: 'Whether the copies of the joint Will dated 01.03.1985 can be received as secondary evidence.', 'Whether the second defendant proved the execution of the joint Will by her parents.', 'Whether the second defendant proved the execution and genuineness of the Will dated 19.08.1999.', 'Whether the second defendant proved the execution and genuineness of the release deed.', "Whether the trial court's judgment and decree are legally sustainable."
Ratio Decidendi: The court reiterated that the burden of proof lies on the propounder of a Will to establish its validity, especially when suspicious circumstances exist. It emphasized the necessity of primary evidence and the conditions under which secondary evidence may be admitted, as outlined in the Indian Evidence Act. The court concluded that the second defendant failed to meet these evidentiary standards.
Final Decision: The appeal was dismissed, affirming the trial court's decision that the second defendant was entitled only to a share in the property along with her siblings.
JUDGMENT :
JOHNSON JOHN, J
The appellant is the second defendant in O.S. No. 574 of 2011 on the file of the Additional Sub Judge, Irinjalakuda.
2. The suit is one for partition. As per the plaint averments, the plaint schedule properties belonged to Adv. Nanu Menon and his wife, Janaki Amma. The plaintiff, defendants 1 to 3 and deceased Leela are the children of Nanu Menon and Janaki Amma. The 4th defendant is the son of the third defendant. Since the 4th defendant was born prior to the Kerala Joint Hindu Family System (Abolition) Act, 1977 (Act 30 of 1976), he is also entitled for a share in items 1 and 2, the thavazhi property of the mother Janaki Amma. It is stated that items 1 to 10 are the intestate property of the parents of the plaintiff. The Mother, Janaki Amma, died on 20.07.1998 and the father, Nanu Menon, died 04.10.1995. The marriage of the plaintiff’s sister, Dr. Leela, was legally dissolved and she died issueless. She died on 14.05.2010. It is stated that the plaintiff and defendants 1 to 3 are the legal heirs of Dr. Leela.
3. Defendants 1, 3 and 4 filed written statement supporting the plaintiff. The second defendant contended that her parents, Nanu Menon and Janaki Amma, executed a joint Will on 01.03.1985 bequeathing items 8 and 10 properties in favour of her sister, Dr. Leela. It is stated that Dr. Leela was in possession and enjoyment of the said properties during her lifetime and that on 19.08.1999 Dr. Leela executed a Will deed with respect to the said properties and the same was registered on 14.09.1999.
4. As per the Will Deed executed by Dr. Leela, the said properties were bequeathed to the second defendant. Accordingly, the second defendant is in possession and enjoyment of items 8 and 10 properties. It is also contended by the second defendant that her sister Leela executed release deed No. 1433 of 2000 in favour of the second defendant and thereby, released her right over 1/5th share in plaint schedule items 3 to 7 properties in favour of the second defendant and therefore, the plaintiff’s claim over the plaint schedule properties are not legally sustainable.
5. The plaintiff filed replication denying the execution of any joint Will by the parents on 01.03.1985. It is stated that all the children were equally beloved to the parents and under no circumstance, the parents would execute such a joint Will bequeathing the properties exclusively to Dr. Leela. It is stated that the plaintiff’s father, Adv. Nanu Menon, was an eminent civil lawyer and he will never execute an unregistered Will on a plain paper. It is stated that Dr. Leela was never in exclusive possession of any item of property and that she was bedridden due to various ailments for about 13 years prior to her death.
6. The contention of the second defendant that Dr. Leela executed a Will Deed on 19.08.1999 and registered the same on 14.09.1999 is false and hence, denied. It is stated that Dr. Leela was not having physical and mental capacity during 1999 to execute such a deed in favour of the second defendant. The averment in the written statement that Dr. Leela executed release deed No. 1433 of 2000 in favour of the second defendant, is also denied by the plaintiff. It is stated that Dr. Leela was not having any special love or affection towards the second defendant and that the second defendant, who is a law graduate, is attempting to get the properties by cheating her siblings.
7. In the trial court, from the side of the plaintiff PW1 was examined and Exhibits A1 to A4 were marked. From the side of the defendants, DWs 1 to 12 were examined and Exhibits B1 to B32 were marked. Exhibit C1 and X1 to X7 were also marked.
8. After considering the evidence on record and hearing both sides, the trial court found that the second defendant has not succeeded in proving the alleged Will dated 01.03.1985 of the parents and the alleged Will dated 19.08.1999 of Dr. Leela. The trial court also found that the second defendant has not proved the execution and genui
The propounder of a Will must prove its execution and validity, particularly in the presence of suspicious circumstances, and must provide primary evidence unless satisfactorily explaining its absenc....
Sections 68 of Indian Evidence Act reads as proof of execution of document required by law to be attested.
Secondary evidence – Neither mere admission of a document in evidence amounts to its proof nor mere making of an exhibit of a document dispense with its proof, which is otherwise required to be done ....
The court emphasized that the burden of proof lies on the propounder of a Will, especially when suspicious circumstances exist, necessitating clear evidence of its validity.
The court established that a Will must comply with statutory requirements to be considered valid, emphasizing the importance of proper attestation and execution.
Proof of execution of Will – There can be no interference to Will which stands proved unequivocally.
The court ruled that the validity of a Will under the Indian Succession Act requires strict compliance with execution standards, and civil courts lack jurisdiction over intestate succession matters.
The mere presence of the beneficiary at the time of the execution of the Will, by itself, would not be a factor to hold that the Will in question is shrouded with suspicious circumstances and the fir....
The main legal point established in the judgment is that the admissibility and proof of a Will should adhere to the mandate prescribed under the Evidence Act, and examination of attesting witnesses i....
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