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2025 Supreme(Ker) 44
IN THE HIGH COURT OF KERALA AT ERNAKULAM
M.A.ABDUL HAKHIM, J
C.P. Joseph Son of Late C.R.Pius - Appellant
Versus
C.P. Francis S/o.C.P. Pius - Respondent
RSA NO. 94 OF 2014
Decided On : 23-01-2025
A.B.JALEEL, RADHIKA, S.ANIL, NAZLIN JALEEL, NIJAZ JALEEL, R1 AND R2 BY ADVS.SRI.SABU P.JOSEPH, SRI.C.N.SREEKUMAR, SMT.MANJU PAUL, SRI.ANIL PRASAD, SMT.G.ASHWINI, R3 BY ADV. SRI. K.SAJAN KURIAKOSE
IMPORTANT POINT
A bequest in a Will is void if attested by a beneficiary, as per Section 67 of the Indian Succession Act, impacting the validity of the Will.
Headnote:
(A) Indian Succession Act, 1925 - Section 67 - Testamentary capacity - The court examined the validity of a Will executed by deceased parents, determining that the bequest to the first defendant was void due to the attestation by his wife, an attesting witness. The court emphasized that the attestation by a beneficiary renders the bequest void under Section 67. (Paras 23 , 24 , 25 )
(B) Partition - The court allowed the appeal for partition of properties, granting equal shares to all plaintiffs and defendants, and issued a permanent injunction against alienation. (Paras 29a, 29b)
Facts of the case: The suit involved a partition of properties owned by deceased parents, with disputes arising over a Joint Will allegedly executed in favor of the first defendant. The plaintiffs challenged the Will's validity, claiming it was falsely created. (Paras 2 - 5 )
Findings of Court: The court found that the Will was invalid due to improper attestation, leading to the allowance of the appeal and the ordering of a partition. (Paras 27 , 29 )
Issues: The main issues included the validity of the Will under Section 67 and the rightful shares of the parties involved. (Paras 12 , 14 )
Ratio Decidendi: The court ruled that the attestation by a beneficiary voids the bequest, affirming that the Will could not stand due to the conflict of interest. (Paras 23 , 24 )
Result: The Regular Second Appeal was allowed, and a Preliminary decree for partition was issued.
JUDGMENT
1. Appellants are the plaintiffs in the suit.
2. The suit was for the partition of Plaint A and B schedule properties and a permanent prohibitory injunction against alienation and committing waste. Plaint A and B schedule properties belonged to Pius and his wife, Philomina Pius, respectively. Pius and Philomina Pius died on 24.11.2004 and 27.11.2008, respectively.
3. The plaintiffs 1 to 5 and defendants 1 and 2, and Mariya, the mother of defendants 3 and 4, are the children of Pius and Philomina Pius. Pius was the owner of the plaint A schedule property, which had an extent of 7.875 cents of land, and the Tharawad house therein. Philomina Pious had 7.233 cents of land, out of which Philomina executed Ext.B2 Settlement Deed in favour of the fourth plaintiff for 4 cents, and the balance of 3.233 cents is included in plaint B schedule property. Plaint A and B schedule properties formed a compact plot within a common boundary.
4. As per plaint allegations, when the first defendant refused the demand of partition from the part of plaintiffs 1 and 2, claiming that he became the absolute owner of the plaint schedule properties by a Joint Will executed by the father and mother, the plaintiffs 1 and 2 took a copy of the same from the Sub Registrar Office and understood that a Will is falsely created in the name of the father and the mother in favour the 1 st defendant. The plaintiffs challenged the testamentary capacity of the father and the mother and the execution of the Will.
5. The plaintiffs sought partition of plaint A and B schedule properties, praying to allot 1/8 share to each of the plaintiffs and defendants 1 and 2 and 1/8 share jointly to defendants 3 and 4.
6. Defendants 3 and 4 remained absent, and they were set ex parte.
7. The suit was contested by defendants 1 and 2 by filing a Written Statement. They admitted the relationship of the parties and the original ownership of the parents over the plaint schedule properties. They claimed that Pius and Philomina had executed a registered Joint Will dated 27.01.2003 in favour of the first defendant bequeathing the plaint A and B schedule properties in favour of the first defendant with the stipulation to make payments to other sharers except for the 4 th plaintiff within a period of five years after the death of both parents and creating a charge over the plaint schedule properties with respect to those payments.
8. Thus, the 1st defendant is claiming exclusive title over the plaint schedule properties on the strength of the said Will. The certified copy of the said Will is marked as Ext.A4 from the side of the plaintiffs, and the original of the said Will is marked as Ext.B3 from the side of the defendants.
9. On the side of the plaintiffs, PWs1 and 2 were examined, and Exts.A1 to A9 were marked. On the side of defendants 1 and 2, DWs 1 to 7 were examined, and Exts.B1 to B11 were marked. PW1 is the fourth plaintiff. PW2 is the Doctor who issued Ext.A7 Certificate showing that Pius was under his treatment from 13.09.2000 to 24.10.2000 at P.N.V.M. Hospital, Ernakulam. DW1 is the first defendant, DW2 is the second defendant, DW3 is cited as the Scribe of Ext.B3 Will, DW4 is the Sub Registrar who registered Ext.B3 Will, DW5 is the wife of the first defendant, who is the second Attesting Witness in Ext.B3, DW6 is the husband of the 3 rd defendant, who is the first Attesting Witness in Ext.B3 and DW7 is the Doctor who proved Ext.B11 original Treatment File of Lissie Hospital, Ernakulam.
10. The Trial Court found that the testators had testamentary capacity at the time of execution of Ext.B3 Will; that the evidence of DW5 is in compliance with Section 63(c) of the Indian Succession Act, whereas the evidence of DW6 is not in compliance of Section 63 of the Indian Succession Act; that though the evidence DW6 is not in compliance with Section 63(c) of the Indian Succession Act, it i
