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IN THE HIGH COURT OF KERALA AT ERNAKULAM
M.A.ABDUL HAKHIM, J.
P.D. Parameswaran Pillai – Appellant
Versus
T.M.Ramachandran Nair S/o. K.V. Narayanan Pillai – Respondent
JUDGMENT :
1. The additional defendants, 2 to 7, who are the legal heirs of the original defendant, are the appellants. Hereinafter, the original defendant is referred to as the 1st defendant. The plaintiff and the 1st defendant are the children of Ammalu Amma. The suit was for the partition of the plaint schedule property having an extent of 15 ½ cents belonged to Ammalu Amma as per Ext.A1 Gift Deed dated 29.02.1980 executed by the plaintiff. Ammalu Amma expired on 02.05.1995. The suit was filed on 16.02.2005.
2. As per the plaint allegations, the plaintiff issued Ext.A3 Notice dated 05.01.2005 to the 1st defendant demanding partition. The 1st defendant sent Ext.A4 Reply dated 10.01.2005 stating that Ammalu Amma had executed Ext.B2 Will dated 23.05.1980 bequeathing the plaint schedule property in favour of the 1st defendant. The plaintiff came to know about Ext.B2 Will only from Ext.A4 Reply. Ammalu Amma never executed such a Will. She had no mental capacity to execute any such Will on the date of the alleged execution. Ammalu Amma was not in a proper state of mind to make any such disposition due to her old age. Hence, the plaint schedule is liable to be partitioned, allotting half
The court ruled that the registration of a Will does not suffice as proof of execution; strict compliance with statutory requirements is essential, and other evidence may be considered if attesting w....
(1) Normally, registration of Will shall not be used as proof of execution of Will.(2) Proof of execution of Will – When evidence of attesting witness is deficient to meet requirements under Section ....
Section 71 of Act 1872 has no application in a case where one attesting witness who alone had been summoned fails to prove 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 burden to prove the validity of a Will lies with the propounder, and failure to meet statutory requirements results in its invalidation.
The burden to prove the execution of a Will and the free will of the testator lies on the propounder. The propounder must establish attestation and remove suspicious circumstances affecting the genui....
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.
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.
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