When the execution of a Will is surrounded by suspicious circumstances, the propounder has the duty to dispel such suspicious circumstances, and the courts would be reluctant to accept the Will as the last Will of the testator if the suspicious circumstances are not satisfactorily explained.

This second appeal under Section 100 read with Order XLII Rule 1 CPC filed by the defendants/appellants is against the judgment and decree dated 31/10/2018 in A.S.No.85/2016 on the file of the District Court, Pathanamthitta, which appeal in turn is against the judgment and decree dated 03/06/2016 in O.S.No.75/2011 on the file of the Munsiff Court, Ranny. The parties and the documents will be referred to as described in the suit.

2.The suit was one for partition. The plaintiffs and the first defendant are siblings. The second defendant is the daughter of the first defendant. The plaint schedule property originally belonged to Kuttappan, the father of the plaintiffs and the first defendant, who died intestate on 20/10/2006. Kuttappan obtained the plaint schedule property vide Exts.A1 and A2 sale deeds dated 23/05/1970 and 08/08/1977 respectively. The parties are Hindus belonging to the Ezhava community and hence are governed by the Hindu Succession Act, 1956. The plaintiffs and the first defendant are entitled to 1/4 share in the plaint schedule property. The first defendant is not amenable for partition of the property and hence the suit.

3.The first defendant contended that the plaint schedule property was not partible as late Kuttappan as per Ext.B1 Will dated 26/05/2006 had bequeathed the entire property in favour of his daughter, namely, the second defendant, who in turn has affected mutation and is in possession and enjoyment of the property. The first defendant has constructed a residential building in the plaint schedule property using his own funds. In the light of Ext.B1 Will, the plaintiffs are not entitled to any share of the property.

4.Necessary issues were framed by the trial court. The parties went to trial on the basis of the aforesaid pleadings. PW1 to PW3 were examined and Exts.A1 to A4 were marked on the side of the plaintiffs. DW1 and DW2 were examined and Ext.B1 was marked on the side of the defendant. Exts.X1 and X2, the relevant page of the thumb impression register maintained in the Registrar Office and the copy of the Special Register of land acquisition were also marked. Exts.C1 to C1(b) are the report and plans filed by the advocate commissioner. The trial court on an appreciation of the oral and documentary evidence and after hearing both sides, rejected the case of the defendants regarding Ext.B1 Will and decreed the suit by which a preliminary decree was passed allotting A.S.No.85/2016. The first appellate court confirmed the judgment and decree of the trial court and dismissed the appeal. Hence, the defendants have come up in second appeal.

5.This Court as per order dated 08/04/2019 admitted the appeal on the following substantial questions of law:-

“1. Is the burden upon the plaintiffs to establish and prove the suspicious circumstances when once the testamentary capacity of the testator has been duly proved by the attesting witness under Section 63 of the Indian Succession Act, 1925? 2.In the absence of any finding that the testator has not signed the Will nor that the testator subscribed to the Will not knowing the contents thereof and without understanding the nature and effect of the dispositions of the Will has not the court below erred in law in holding that the execution of the Will has not been satisfactorily proved by the propounder? 3.Has the defendants discharged their burden of proving the Will as contemplated under Section 68 of the Indian Evidence Act, 1872? 4.In the absence of any pleading to the effect that Ext.B1 Will was brought about by forgery, is a challenge maintainable on the part of the plaintiffs' based on oral evidence or more arguments of the counsel? 5.When execution of the Will is duly proved by the evidence of the attesting witness and there was no other attending circumstances to arrive at irresistible conclusion that the Will was the outcome of any fraud has not the courts below erred in disinheriting the legatee?”

6.Heard both sides. 7.It was quite strenuously