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2025 Supreme(Ker) 2870
IN THE HIGH COURT OF KERALA AT ERNAKULAM
C. PRATHEEP KUMAR, J.
P. Prema W/o C.T. Vijayan – Appellant
Versus
C.V. Ajayakumar S/o C.T. Vijayan – Respondent
RFA No. 167 of 2006
Decided On : 10-09-2025
For the Appellants : Shahul Hameed Mooppan, K.M. Varghese, T.A. Niyas, Arun T.S.
For the Respondents: S. Vinod Bhat, N. Anilkumar
The court affirmed that a will is valid if proved to have been executed voluntarily and the propounder successfully removes any suspicious circumstances surrounding its execution.
Headnote:(A) Indian Succession Act, 1925 - Section 63 - Execution of unprivileged Wills - Plaintiff filed for partition alleging intestacy; defendants claimed a will executed by the deceased. Trial court ruled the will was not valid due to lack of proof of its execution - Appeal by defendants to uphold will's validity. (Paras 2 - 3, 21 - 22)
(B) Will - Due execution and suspicious circumstances - The court examined whether the will was executed voluntarily and without undue influence, and noted the necessity for the propounder of the will to remove suspicions - Court found sufficient proof and removed such suspicions. (Paras 1 - 4, 21)
Facts of the case:
The plaintiff, son of deceased, claimed right to property after his father's death, citing intestacy, while defendants contended a will that bequeathed property. Defendants presented a will that the trial court rejected for lack of proof.
Findings of Court:
The court found that the defendants successfully proved the will's due execution and that no suspicious circumstances invalidated it.
Issues: The main issues were whether the will was executed voluntarily and whether suspicious circumstances existed.
Ratio Decidendi: The court held that the defendants adequately established the will's validity, with strong evidence indicating the absence of suspicious circumstances surrounding its execution.
Result: Appeal allowed; the preliminary decree set aside, and the suit dismissed.
| Table of Content |
|---|
| 1. entitlement to partition based on intestacy. (Para 1 , 2) |
| 2. issues framed by the trial court. (Para 3 , 4) |
| 3. burden of proof regarding mental soundness. (Para 12 , 14) |
| 4. fitness of deceased at will execution. (Para 15 , 18) |
| 5. removal of suspicious circumstances surrounding the will. (Para 19 , 21) |
| 6. dismissal of partition claim. (Para 22) |
JUDGMENT :
C. PRATHEEP KUMAR, J.
1. The appellants are the defendants in O.S No. 270 of 2002 on the file of the Sub Court, Palakkad. (For the purpose of convenience, the parties are hereafter referred to as per their rank before the trial court. )
2. The plaintiff filed this suit for partition. The plaintiff is the son of late Vijayan, who died on 23.03.2002. The defendants are the widow and daughter of Vijayan. According to the plaintiff, Vijayan died intestate and as such, the plaint schedule property is liable to be partitioned into three shares and he is entitled to get one such share. According to him, since the defendants are not co-operating with him for amicably partitioning the plaint schedule properties, he preferred this suit for partition and separate possession of his 1/3rd share from the scheduled properties. The defendants filed a written statement contending that Vijayan had executed a 'Will' reserving life interest to the 1st defendant and bequeathing the plaint schedule properties to the 2nd defendant and as such the plaint schedule properties are not partible. Therefore, according to them, the suit is liable to be dismissed.
3. The trial court framed nine issues. The evidence in the case consists of the oral testimonies of PWs 1 and 2, DWs 1 and 2, Exhibits A1 to A17 and B1 to B21. After evaluating the evidence on record, the trial court found that the defendants failed to prove the due execution of Exhibit B21 Will and therefore decreed the suit and passed a preliminary decree dividing the scheduled properties into 3 shares and permitting any of the sharers to file an application for passing a final decree in tune with the preliminary decree. Aggrieved by the above preliminary decree and judgment passed by the trial court, the defendants preferred this appeal, raising various grounds.
4. Now the points that arise for consideration are the following:
1. Whether late Vijayan had executed Exhibit B21 Will voluntarily with free disposing state of mind?
2. Whether the defendants have succeeded in removing the suspicious circumstances, if any, surrounding Exhibit B21 Will?
3. Whether the imputed judgment and decree of the trial court calls for any interference in the light of the grounds raised in the appeal?
5. Heard Sri Shahul Hameed Mooppan, the learned counsel for the appellants and Sri. Vinod Bhat, the learned counsel for the respondent.
6. The points :-
The relationship between the parties is not disputed. Admittedly, the plaint schedule properties belonged to late Vijayan, who died on 23.03.2002. In fact, it was a suicide. The plaintiff is his only son and the 2nd defendant is his only daughter and the 1st defendant is his widow and the mother of the plaintiff and 2nd defendant. While according to the plaintiff, Vijayan died intestate, according to the defendants, Vijayan executed Exhibit B21 Will bequeathing plaint schedule properties in favour of the 2nd defendant subject to the life interest of the 1st defendant. According to the learned counsel for the appellants, from the evidence of DW2, one of the attesting witnesses, the defendants have succeeded in proving the due execution of Exhibit B21 Will. Further, according to the learned counsel, In this case, there is no suspicious circumstance surrounding the Will and as such, the trial court was not justified in rejecting Exhibit B21 and decreeing the suit.
7. On the other hand, the learned counsel for the plaintiff would argue that since the plaintiff is the only son of deceased Vijayan, the fact that he was not given any properties as per Exhibit B21, is a serious suspicious circumstance surrounding the Will. Fu
