IMPORTANT POINT
Proof of Execution of Will – Mere admission by plaintiff regarding ‘Will’, will not ipso facto enable defendants to contend that Will need not be proved in terms of Section 68 of Evidence Act.

JUDGMENT

The appeal arises out of the reversal of the judgment and decree granted by the Munsiff Court, Adoor, in O.S.No.282/2008 by the Additional District Court-IV, Pathanamthitta, in A.S.No.26/2015.

2. Initially, this appeal was dismissed at the admission stage by judgment dated 08.01.2019. Aggrieved by the same, the appellant preferred SLP(C) No.7618/2019, which was converted to Civil Appeal No.2697/2024 and was ordered by the Hon’ble Supreme Court by order dated 20.02.2024, setting aside the judgment and remanding the appeal back for fresh consideration and also for framing questions of law. Accordingly, by order dated 08.04.2024, this Court admitted the appeal and framed the following questions of law:—

(1) Whether the First Appellate Court is justified in raising issues which do not have any foundation in the pleadings?

(2) Whether disinheriting a legal heir is, by itself, a suspicious circumstance?

(3) Whether the First Appellate Court went wrong by going suo motu into the question of genuineness of Ext.B2 Will, when the same was not at all under challenge in the suit, the execution of which was explicitly admitted by the respondent and the cancellation which was not at all sought for by the respondent/plaintiff?

3. The brief facts necessary for the disposal of the appeal are as follows:

The defendants in a suit for partition resisted the claim for partition based on a Will executed by one Damodara Panicker. Damodara Panicker married Sankari Amma and had two children, the plaintiff and late Saranya, who passed away on 04.07.2002. Sankari Amma died on 19.02.1995 and Damodara Panicker married the 1st defendant – Smt.Jayasree on 26.06.1995. On 03.11.1995, he executed a Will in favour of Smt.Jayasree and late Saranya. However, there was a clause in the Will was inserted by which the legacy would lapse on the death of Saranya or if she had died issueless after marriage and that the property will revert to Smt.Jayasree, who is the second wife of late Damodara Panicker. The plaintiff contended that she is entitled for the partition of the plaint schedule property and one third share to be allotted to her. Later, when the defendants appeared and contested the suit by raising a defense based on Ext.B2 Will, the plaintiff sought amendment of the plaint questioning the validity of the Will insofar as the share of Saranya getting lapsed on account of her death. The said application was however dismissed, but still, the plaintiff proceeded to contest the suit without questioning the said rejection of the amendment. Initially, the suit was dismissed by judgment and decree dated 26.02.2013. Aggrieved by the judgment and decree, the plaintiff preferred A.S.No.111/2013 and by judgment dated 09.07.2014, the dismissal of the suit was set aside, and the matter was remanded back for fresh consideration by the First Appellate Court. Pursuant to the remand, the Trial Court by judgment dated 28.10.2014 dismissed the suit, since the defendants were able to prove the Will in accordance with Section 68 of the Indian Evidence Act, 1872, by examining the attesting witness. On appeal by the plaintiff, the First Appellate Court reversed the judgment of the Trial Court and decreed the suit finding that the execution of Will is surrounded by suspicious circumstances. Thus, the defendants are before this Court in the present appeal.

4. Heard, Sri.K.P.Sreekumar – learned counsel appearing for the appellants/defendants and Sri.Alexander Joseph – learned counsel appearing for the respondent/plaintiff.

5. Sri.K.P.Sreekumar - learned counsel appearing on behalf of the appellants, pointed out that the parties are bound by the remand order passed by the Appellate Court on 09.07.2014. With the defendants having complied with the requirement of examining the attesting witness, the plaintiff cannot turn around and contend that the Will was surrounded with suspicious circumstances. The Trial Court did not entertain any doubt as regards the execution of the