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KERALA HIGH COURT
Thottathil B. Radhakrishnanand B. Kemal Pasha, JJ.
Vadakkayil Gopalan —Appellant
versus
Vadakkayil Paru —Respondent
A.F.A.No.47 of 2002
Decided on 7.6.2013
For the Appellant:B.Krishnan & R. Parthasarathy, Advocate.
For the Respondents:S.Y. Balakrishna Iyer (Sr. Advocate), P.R. Venketesh, N.L. Krishnamoorthy, K. Lakshmi Narayanan, D.Anil Kumar, K.C. Chacko, P.B. Krishnan & R.K.Muraleedharan, Advocates.
IMPORTANT POINT
Will can be held to have been proved when statutory requirements for proving Will are satisfied.
Headnote:Succession Act, 1925—Section 63—Evidence Act, 1872—Section 68—Proof of Will— Even in cases where doctrine of dependent relative revocation can be applied, it does not mean that genuineness of contents of earlier Will have to be swallowed and taken as granted without proof of contents of Will—Onus which lies on propounder can be taken to be discharged on proof of essential facts which go into making of Will—Cases in which execution of Will is surrounded by suspicious circumstances stand on a different footing—A shaky signature, a feeble mind, an unfair and unjust disposition of property, propounder himself taking a leading part in making of Will under which he receives a substantial benefit and such other circumstances raise suspicion about execution of Will—That suspicion cannot be removed by mere assertion of propounder that Will bears signature of testator or that testator was in a sound and disposing state of mind and memory at the time when Will was made—In cases where circumstances attendant upon execution of Will excite suspicion of Court, propounder must remove all legitimate suspicions before document can be accepted as last Will of testator. (Paras 17, 21 and 27)
Result: Appeal dismissed.
B.Kemal Pasha, J.—Is it the duty of the propounder of a Will to prove it genuineness and to dispel suspicious circumstances, if any, surrounding its execution even when the adverse party does not specifically deny the existence of the Will and even when admits its existence? Can the doctrine of dependent relative revocation absolve the burden of the propounder of the earlier Will from proving its genuineness or its due execution, or to dispel the suspicious circumstance, surrounding its execution?
2. By propounding Ex.Al Will dated 24.1.1989 allegedly executed by two sister, namely, deceased Mathu and Paru, the plaintiff has forwarded a claim for partition of the property covered by Ex.Al, after the death of Mathu and during the life time of Paru, who is the first defendant. Mathu died on 2.9.1991, thereby the plaintiff, based on Ex. A1 Will claims half share over the property on the averment that the bequest through Ex. A1 joint Will to the extent it relates to the disposition by Mathu has taken effect or her death.
3. The first defendant Paru has contended that Ex.A1 Will has not come into operation as it stood revoked through the execution of Ex.B1 joint and mutual Will dated 15.5.1991 by Mathu and herself. It was also contended that a portion of the scheduled property having an extent of 10 cents was gifted by Mathu and herself to the 2nd defendant through Ex.B2 settlement deed dated 30.4.1991, inter alia, it was also contended that Ex. A1 Will was fraudulently obtained by the plaintiff.
4. The plaintiff averred that Mathu died after prolonged illness, on 2.9.1991 and she had a flaccid mental faculty for about six months before her death. Even though the plaintiff has not revealed anything regarding the execution of Ex.B 1 Will dated 15.5.1991, it seems that the aforesaid averment was deliberately made by eying on the execution of Ex.B 1 by the testatrices, in order to bring out a suspicious circumstance in the execution of Ex.B1. Even when the written statement was filed by the first defendant on 25.11.1991, the plaint was belatedly amended through Order dated 5.9.1992 in I.A.No.1142 of 1992 by incorporating paragraph No.6A in the plaint and impleading the 2nd defendant who is the donee in Ex.B2. Paragraph No.6A of the plaint reads as follows:
“2nd defendant is said to be a donee of a section of the property by gift dated 30.4.1991. The plaintiff denies the right of the 2nd defendant over any section of the plaint property and will deliver additional pleadings after seeing D2’s pleadings.”
5. It seems that the 2nd defendant has filed his written statement on 16.10.1992. However, the plaintiff has not cared to deliver any additional pleadings as averred in paragraph No.6A of the plaint. It seems that there is no challenge with regard to the execution of Ex.B2, or its genuineness.
6. After a full fledged trial, the learned Sub Judge dismissed the suit. The appeal filed by the appellant was also dismissed by the learned single Judge of this Court, by upholding the findings entered by the trial Court. The learned counsel for the appellant has argued that the execution of Ex.B1 is shrouded in suspicious circumstances, and deceased Mathu who was the co-testatrix of the first defendant had no mental ability to exercise any free will at the time of the execution of Ex.B1. According to the learned counsel for the appellant, the first defendant has failed to dispel the suspicious circumstance surrounding the execution of Ex.B1, thereby the bequest through Ex.B1 fails, and on such failure, Ex.A 1 revives through the doctrine of dependent relative revocation.
7. It remains a mystery as to how Ex.Al was marked by the trial court. The records do not reveal the examination of any of the attesting witnesses to prove Ex.A 1. As pointed out by the learned single Judge, any of the attesting witnesses to Ex.A 1 was not examined to prove the execution of Ex. A1. Even the plaintiff has not cared to mount the box to speak anything re
