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IN THE HIGH COURT OF KERALA AT ERNAKULAM
M.A.ABDUL HAKHIM, J.
Narayan Achary Krishnan Kutty, S/O.Narayan Achary - Appellant
Versus
Janardhanan - Respondent
RSA No. 37 of 2015
Decided on : 08-08-2024
WILL - Partition Suit - Sections 42, 43, 45, 63 of the Registration Act; Section 68 of the Indian Evidence Act - The court discussed the requirements for proving a will under the Registration Act, emphasizing the need for attestation and the burden of proof on the propounder. It highlighted that the execution of a will must be proven beyond suspicious circumstances, and the absence of certain evidence, such as expert testimony on signatures, can undermine the validity of the will. The court ultimately found that the will in question was not sufficiently proven, leading to a decision favoring partition of the properties among the plaintiffs and defendants.
Fact of the Case:
The plaintiffs filed a suit for partition of properties belonging to Narayanan Achari, claiming equal shares among themselves and the defendants. The defendants countered with a claim based on a will executed by Narayanan Achari, which they argued excluded certain plaintiffs from inheritance. The plaintiffs contested the validity of the will, alleging it was executed under undue influence and without testamentary capacity.
Finding of the Court:
The court found that the will was not sufficiently proven due to suspicious circumstances surrounding its execution, including contradictions in witness testimonies and the absence of expert evidence regarding the testator's signature. The court upheld the trial court's decision to partition the properties into equal shares among the plaintiffs and defendants.
Issues: 1. Whether the findings regarding the proof of the will were perverse and contrary to the evidence. 2. Whether the evidence presented was sufficient to prove the due execution and attestation of the will. 3. Whether the courts below were justified in their conclusions regarding the will's validity and the partition of the properties.
Ratio Decidendi: The court reiterated that the burden of proof lies with the propounder of the will to establish its validity, especially in the presence of suspicious circumstances. It emphasized that mere registration of a will does not automatically validate it, and the absence of key evidence, such as expert testimony on the testator's signature, can lead to doubts about its authenticity.
Final Decision: The Regular Second Appeal was partly allowed, modifying the trial court's decree to remove the exclusive right over the residential building in the plaint schedule properties, which was deemed not partible.
JUDGMENT :
1. This Regular Second Appeal is filed by defendants 1, 3 & 4 in a suit for partition.
2. The respondents 1 to 7 are the plaintiffs in the suit. During the pendency of this Regular Second Appeal, the 3rd respondent/3rd plaintiff died, and his legal representatives are impleaded as respondent Nos.8 to 10 as per order dated 19.12.2022 in I.A.No.3/2019.
3. The parties are referred according to their status before the Trial Court.
4. The plaintiffs filed the suit for partition of plaint A & B schedule properties belonged to Pappu Achari Narayanan Achari in equal shares of 1/9 each among the plaintiffs (7Nos) and the defendants 1 & 2, who are the children of Narayanan Achari who died on 16.11.1998 claiming that the plaint schedule properties belonged to Narayanan Achari as per Ext.A1 Deed; and that wife of Narayanan Achari predeceased Narayanan Achari.
5. According to the plaintiffs, both plaint A & B schedule properties are lying as a single compact plot; that Narayanan Achari and the first plaintiff constructed a house in the plaint schedule properties utilizing their funds; the plaint A schedule property has an extent of 4 cents with a building therein. Plaint B schedule property is a property having an extent of 7.800 cents of land and the building therein.
6. There is no dispute among the parties to the suit regarding the status of the parties as children of Narayanan Achari, the death of Narayanan Achari and his wife, and the title of Narayanan Achari over the plaint schedule properties.
7. The defendants opposed the suit claim by filing Written Statement that Narayana Achari had executed Ext.X2 Will (Ext.B2 is the certified copy) on 28.06.1995 with regard to the plaint schedule properties and it was kept with the District Registrar, Kollam and after his death, the said Will was registered as Will No.126/1998 of SRO Kollam; that the said Will came into force; that as per the said Will, Plaintiffs 4, 6 & 7, who are female children, are not having any right over the plaint schedule properties, Plaint A schedule property is allotted to the plaintiffs 1 to 3 and 5 and the defendants 1 & 2 and Plaint B schedule property and the building therein were allotted to the share of defendants 1 & 2; that the defendants have effected mutation with respect to the plaint B schedule property and it is in the joint possession of the defendants and they are residing there with family members; that Plaint A and B Schedule Properties are separated by definite boundaries and survey stones; that plaint A schedule property is in joint possession of the plaintiffs 1 to 3 & 5 and the defendants; that plaint A schedule property alone is partible and it is to be partitioned into
6 equal shares and each of the shares is to be allotted to plaintiffs 1 to 3, 5 and the defendants 1 & 2. They raised a Counter Claim for partition of plaint A schedule property into 6 equal shares by allotting 1/6 share each to plaintiffs 1 to 3, 5 and defendants 1 & 2, for a declaration that the building in plaint B schedule property and trees therein are owned by the defendants, for eviction of the 5th plaintiff from the residential house in Plaint B schedule property and for an injunction restraining the plaintiffs from entering into plaint B schedule property and from committing waste therein.
8. The plaintiffs filed Written Statement to the Counter Claim denying the execution of the Will alleged to have been executed by Narayanan Achari, citing the improbability of the execution of the Will contending that there was no need of circumstances for executing such a will; alleging undue influence, coercion and fraud in the execution of the Will contending that Narayanan Achari was in the control of defendants 1 and 2 since the year 1991; that Narayanan Achari was fully dependent on the defendants during the year 1995; that he had mental diseases; that he was mentally and physically incapable and hence there is no chance of executing a Will by himself; and challenging the test
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 the validity of a Will must be proven through credible witness testimony, and the burden of proof lies with the propounder to dispel any suspicions regarding its authentici....
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.
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 ....
Point of law : Section 68 only envisages the examination of one among the two attestors to establish the execution of Will.
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 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....
Sections 68 of Indian Evidence Act reads as proof of execution of document required by law to be attested.
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