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IN THE HIGH COURT OF KERALA AT ERNAKULAM
M.A. Abdul Hakhim, J.
Rathnamma and Ors. – Petitioners
Versus
Omana and Ors. – Respondents
RSA NO. 375 OF 2021, RSA NO. 1292 OF 2016
Decided On : 22-10-2024
(A) Indian Succession Act - Sections 63(c) and 68 - Partition of property - Suit filed for partition of 5 cents of land belonging to deceased Sadanandhan - Evidence insufficient to prove Will executed in favor of defendants - Court confirmed lower court's dismissal of appeal and partition decree - No grounds for remand found. (Paras 4, 10, 14, 15)
(B) Evidence Act - Section 68 - Requirement for attesting witness - Evidence of attesting witness insufficient to prove execution of Will as per statutory requirements. (Paras 9, 10, 12)
Facts of the case:
The suit was filed for partition of property belonging to Sadanandhan who died in 2002. Plaintiffs claimed partition while defendants asserted a Will in their favor.
Findings of Court:
The evidence did not sufficiently prove the Will, leading to confirmation of the partition as decreed by the Trial Court.
Issues: Whether the Will was validly executed and the implications for property partition.
Ratio Decidendi: The court emphasized the necessity of statutory compliance for Will execution, ruling that the evidence presented did not meet the required legal standards.
Result: Appeals dismissed.
JUDGMENT :
M.A. Abdul Hakhim, J.
Defendants 1 to 3 are the appellants in RSA 375 of 2021, and defendants 1 and 3 are the appellants in RSA 1292 of 2016. These appeals are filed against the Preliminary decree and final decree in the suit. RSA No. 1292/2016 is filed against the preliminary decree and RSA No. 375/2021 is filed against the final decree.
2. The suit was filed by the plaintiffs for partition of the plaint Schedule property having an extent of 5 cents of land belonging to one Sadanandhan who died on 24.12.2002. Plaintiffs are 4 in numbers. The 1st plaintiff is the wife, 2nd & 3rd plaintiffs are the children and the 4th plaintiff is the mother of said Sadanandhan.
3. As per the plaint allegations, after deserting the plaintiffs, Sadanandhan started residing with the 1st defendant and out of the relationship with 1st defendant, the 2nd and 3rd defendants were born. The plaintiffs claim is that the plaint schedule property is liable to be partitioned among the plaintiffs and the defendants 2 and 3 by alloting 1/6th share each.
4. The defendants opposed the suit for partition, contending, inter alia, that the plaint schedule property is not available for partition as Sadanandhan had executed Ext.B1 Will dated 11.12.2022 in favour of the second defendant with respect to the plaint schedule property.
5. The defendant examined DW2 as one of the Attesting witnesses to prove Ext.B1 Will. The Trial Court found that the evidence of DW2 is insufficient to prove Ext.B1 Will and decreed the suit as prayed for. The defendants 1 and 3 filed A.S No. 157/2009 before the First Appellate Court and the same was dismissed confirming the judgment and decree of the Trial Court.
6. I heard the learned counsel appearing for the appellants Sri. Hariharaputhran and learned counsel for the respondents 1 and 3 Sri. Paul K.Varghese.
7. The learned counsel for the appellants argued that execution of Ext.B1 will is sufficiently proved by the evidence of DW2. The DW2 has specifically deposed that the testator came to his residence with the Will and Sri.Vijayakumar, the other attesting witness and a Scribe; that after getting signature of DW2 and Sri.Vijayakumar the Will was taken to the office of the Notary advocate and after getting the signature of the Advocate, the same was entrusted to DW2.There are compelling circumstances to believe that Ext.B1 Will was executed in order to ensure the residence of the defendants 1 to 3 who have been with the testator for several years, which is admitted by the plaintiffs themselves.
8. On the other hand, the learned counsel for the respondents submitted that execution of Ext.B1 Will is not proved before the Trial Court as mandated under Section 63(c) of the Indian succession Act as DW2 did not give evidence that the testator subscribing his signature to Ext.B1 Will before him. Separate Written Statements filed by the defendants 1 and 2 would show that they claimed that the Will is in favour of the second defendant whereas the Ext.B1 would show that it is in favour of the defendants 1 to 3. The contradiction between the pleading and evidence also would create suspicion as to the execution of the Will. The defendants 1 and 2 are not excluded from inheritance and they also would get their due share as per the Trial Court judgment and Decree.
9. Sec. 68 of the Evidence Act mandates the examination of only one of the two attesting witnesses to prove the Will. It is the duty of the Propounder to examine one of the attesting Witnesses to prove the Will in the Court even if the Will is not denied by the other side.
10. Sec.63(c) of the Indian Succession Act mandates that the Will shall be attested by two or more witnesses has seen the testator sign or affix his mark on the Will. DW2 was examined to prove the execution of Will by the testator. But his evidence would show that he had not seen testator signing the Will in front of him. The learned counsel for the appellant relied on the decision of the Hon’ble Supreme Court in Motu
The court affirmed that the execution of a Will must comply with statutory requirements, particularly the necessity for attestation by witnesses who observe the testator's signature.
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 court upheld the validity of a Will executed under the Indian Succession Act, emphasizing the discretion of the Trial Court in evaluating evidence and the necessity for parties to cooperate in le....
The burden to prove the validity of a Will lies with the propounder, and failure to meet statutory requirements results in its invalidation.
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.
The execution and attestation of a Will under Section 63(c) of the Indian Succession Act require proof of compliance, determined through evidence presented in contested suits.
Single attesting witness's testimony proving both attestations suffices for Will proof under Sections 63(c), Succession Act and 68, Evidence Act.
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 appellate court allowed a remand for further evidence to prove the execution of documents, emphasizing the importance of fair trial rights under the Evidence Act.
A Will can be validated by the testimony of one attesting witness if it meets the statutory requirements, even if the other witness is unavailable or does not support the execution.
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