The court affirmed the validity of a Will, emphasizing the necessity for proof of execution and testamentary capacity, while ruling that mere exclusion of natural heirs does not imply suspicious circumstances.

JUDGMENT :

(P. Krishna Kumar, J.)

The appellant filed a suit for partition of two items of properties against her brothers and the children of deceased siblings. The first defendant, the appellant's eldest brother, contested the suit, claiming that one of the properties—a residential building and 14.875 cents of appurtenant land—belongs to him under a Will executed by their mother. Accepting the first respondent's contentions, the trial court decreed the suit in part, excluding the said residential plot. This appeal is preferred against that judgment.

2. For the sake of convenience, the parties will hereinafter be referred to as they were arrayed in the suit. The skeletal facts necessary for the disposal of this appeal are as follows: The plaintiff, defendants 1 and 2, the late Smt. K.R. Indira, and the late Sri K.R. Jayasanker, are the children of Sri. K.S. Raghavan and Smt. P. Bhavani. Raghavan served as the Secretary to the Government of the erstwhile Thiru- Kochi State and died in a plane crash in 1952. The plaintiff is a medical doctor who had served at Apollo Hospital, Chennai, and KIMS Hospital, Thiruvananthapuram. The first defendant retired as the Chief Technical Examiner under the government, having previously served as a Chief Engineer. The second defendant is a surgeon who held the rank of Captain in an Army hospital. After the death of K.S. Raghavan, his wife P. Bhavani and the children had executed a partition deed consolidating all the properties left behind by K.S. Raghavan, as well as the properties belonging to P. Bhavani, into their common stock. A residential building and the land appurtenant to it had been allotted to K.R. Jayasanker in the said partition deed and the said properties are shown in the plaint as B schedule property. Later, on 30.04.1990, Jayasanker died intestate and issueless. Then the plaint B schedule property devolved upon the mother Bhavani, as per the law of succession applicable to the parties. Subsequently, on 27.08.1997 Smt. P. Bhavani also passed away.

3. At the time of her death, Bhavani left behind a total extent of 171.25 cents of wetland, which are described in the plaint A schedule as item Nos. 1 to 5. The plaintiff and the second defendant have pleaded that, besides the plaint A schedule wetlands, the B schedule residential plot is also available for partition among the legal heirs of Smt. Bhavani, as she died intestate.

4. There is no dispute as to the partibility of plaint A schedule lands. However, the first defendant asserted that late Bhavani had executed her last Will on 6.4.1988 (Ext.B2) at the Sub Registrar Office, Chathamangalam, Thiruvananthapuram, pertaining to the plaint B schedule residential plot, and hence it is not partible.

5. The first defendant further pleaded that the plaintiff and the legal heirs of late Indira had executed a general Power of Attorney in his favour to sell the plaint A schedule property, but the sale failed due to the second defendant's non-cooperation. He asserted that after Bhavani's death, her legal heirs knew that she had executed a Will in his favor, and the institution of the suit was only an experiment made 21 years after Bhavani's death. He received a photocopy of the Will from his mother, and after her death, he mutated the property in his name. The original Will was kept at the residence of Sri. K. Ramachandran (husband of his sister- late Indira), where Bhavani had been staying, but it could not be traced out after her death. The defendant emphasized that he was not involved in the execution of the Will, of which the arrangements for execution was done by K.Ramachandran. He further stated that late Jayasanker had rented portions of the plaint B schedule property to three tenants, two vacated on receiving ex gratia payments, and the third tenant was evicted through a legal proceeding instituted by the first defendant subsequent to the death of Bhavani.

6. The plaintiff in his replication contended that she was unaware of the execution