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 legal proceedings.

JUDGMENT :

M.A. Abdul Hakhim, J.

1. The plaintiff in a suit for partition is the appellant. The suit was filed for partition of the property belonging to one Karuvarakandy Raghavan. The plaintiff and the 3rd defendant are the children of Raghavan, born to his first wife, Sreemathi. 1st defendant is his second wife, and the 2nd defendant is the son born to him through the 1st defendant. During the pendency of the suit, the 1st defendant also died. The plaintiff sought partition of the B schedule property by allotment of 1/4th share to her.

2. The defendants 1 and 3 remained ex parte. The 2nd defendant is recorded as the legal heir of the deceased 1st defendant.

3. The 2nd defendant filed Written Statement admitting the original ownership of plaint B schedule property with Raghavan and the relationship of the parties and resisting the suit prayers contending that Raghavan had executed Ext.B1 Will with respect to Item No.1 and 3 in favour of the defendants 1 and 2.

4. Thereafter, the plaintiff amended the Plaint incorporating necessary contentions disputing the Ext.B1 Will and denying its execution. According to the plaintiff, Raghavan had not executed any such will, and it was a fraudulently created one, and Raghavan was not in a sound disposing capacity at the time of execution of the will.

5. The plaintiff was examined as PW1 and Exts. A1 to A8 were marked. On the side of the defendants DWs 1 & 2 and Exts.B1 to B7 were marked. DW1 is the attesting witness of Ext.B1 Will and DW2 is the 2nd defendant.

6. Initially, the Trial Court decreed the suit, finding that Ext. B1 is a valid Will executed by Raghavan and passed a Preliminary Decree for partition in accordance with Ext.B1 Will. The plaintiff filed A.S.No.158/2013 before the First Appellate Court, and the First Appellate Court set aside the Preliminary Decree passed by the Trial Court and remanded the matter for fresh consideration in accordance with the observations made therein. Thereafter, DW 1 was recalled and examined again. The Trial Court again decreed the suit passing Preliminary Decree for partition in accordance with Ext.B1 will finding that Ext.B1 Will is validly executed by Raghavan. The plaintiff filed an Appeal before the First Appellate Court, and the First Appellate Court dismissed the Appeal, confirming the judgment and decree passed by the Trial Court.

7. I heard the learned Counsel for the appellant, Sri.M Krishnakumar.

8. The learned Counsel for the appellant contended that Ext.B1 Will was not proved in accordance with the provisions of S.63 of the Indian Succession Act and Sections 67 and 68 of the Indian Evidence Act. Learned Counsel invited my attention to various paragraphs in the classic decision of the Hon’ble Supreme Court in H.Venkatachala Iyengar V. B.N.Thimmajamma AIR 1959 SC 443 to enlighten the degree of proof required. Learned Counsel further contended that in the first round, the First Appellate Court found that the evidence of DW2 could not be relied on, and hence, the judgment passed by the Trial court was set aside and remanded the matter back to the Trial court for fresh consideration, in accordance with the observations therein. The plaintiff had filed I. A No. 2001/2013 for sending Ext.B1 for comparison of the signature of DW1 for expert opinion. Though the Trial Court dismissed the said Application, the said Application was allowed by the First Appellate Court, and thereafter, the matter was remanded to the Trial Court. When I. A No. 2001/2013 was allowed by the Superior Court, the same could not be closed by the Trial Court on the submission of the counsel for the plaintiff. It is revealed from Ext.A8 that DW1 is a habitual witness in the Registrar's Office, and he has executed nearly 38 documents during the short period from 16.02.1994 to 02.03.1994. He deposed before the remand that he had executed Ext.B1 alone on the date of execution of Ext.B1. But Ext.A8 would reveal that he had executed several documents on that day. It is proven that DW