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2025 Supreme(Online)(KER) 11099
IN THE HIGH COURT OF KERALA AT ERNAKULAM
M.A. ABDUL HAKHIM, J
P.D.PARAMESWARAN PILLAI – Appellant
Versus
T.N.RAMACHANDRAN NAIR – Respondent
RSA NO. 159 OF 2011
For the Appellants/Petitioners: SRI M NARENDRA KUMAR, SMT.LAYA SIMON, SRI.P.B.PRADEEP
For the Respondents: SRI.VARGHESE PREM
The execution of a Will can be established through additional evidence even if attesting witnesses deny execution, emphasizing strict adherence to statutory requirements for proving Wills.
Headnote:(A) Indian Succession Act, 1925 - Section 63(c) - Evidence Act, 1872 - Sections 68 and 70 - Partition suit - Dispute over the validity of a Will executed by the deceased - Courts found the Will not proved due to lack of sufficient evidence from attesting witnesses - The execution of the Will was established through other evidence, leading to the dismissal of the partition claim. (Paras 6, 30)
(B) Legal principles regarding the proof of Wills - Registration does not equate to proof of execution; strict compliance with statutory requirements is necessary. (Paras 13, 21)
(C) The role of Section 70 of the BSA in proving Wills when attesting witnesses deny execution - Other evidence may be considered if attesting witnesses cannot recall. (Paras 12, 24)
Facts of the case:
The suit was initiated for partition of property claimed to belong to the deceased, with the plaintiff asserting no valid Will existed. The defendant claimed entitlement through a contested Will. (Paras 1, 2)
Findings of Court:
The courts found the Will was not duly executed and attested as per statutory requirements, but other evidence established its validity. (Paras 6, 30)
Issues: The main issues were the validity of the Will and whether the courts erred in their assessment of the evidence. (Paras 8, 30)
Ratio Decidendi: The court held that the evidence presented under Section 70 of the BSA sufficed to prove the Will despite the denial by attesting witnesses, emphasizing that registration alone does not prove execution. (Paras 30, 31)
Result: Appeal allowed, confirming the validity of the Will and dismissing the partition suit.
| Table of Content |
|---|
| 1. partition of property based on a disputed will. (Para 1 , 2) |
| 2. opposition to partition based on alleged will. (Para 3 , 4) |
| 3. trial court's findings on the will's validity. (Para 5 , 6) |
| 4. substantial questions of law admitted for appeal. (Para 8 , 9) |
| 5. arguments for and against the validity of the will. (Para 10 , 11) |
| 6. court's examination of the evidence regarding the will. (Para 12 , 13) |
| 7. legal standards for proving a will. (Para 17 , 18) |
| 8. interpretation of section 71 of the evidence act. (Para 20 , 21) |
| 9. assessment of witness testimonies regarding the will. (Para 22 , 23) |
| 10. final ruling on the validity of the will and partition. (Para 30 , 31) |
JUDGMENT :
1. The additional defendants, 2 to 7, who are the legal heirs of the original defendant, are the appellants. Hereinafter, the original defendant is referred to as the 1st defendant. The plaintiff and the 1st defendant are the children of Ammalu Amma. The suit was for the partition of the plaint schedule property having an extent of 15 ½ cents belonged to Ammalu Amma as per Ext.A1 Gift Deed dated 29.02.1980 executed by the plaintiff. Ammalu Amma expired on 02.05.1995. The suit was filed on 16.02.2005.
2. As per the plaint allegations, the plaintiff issued Ext.A3 Notice dated 05.01.2005 to the 1st defendant demanding partition. The 1st defendant sent Ext.A4 Reply dated 10.01.2005 stating that Ammalu Amma had executed Ext.B2 Will dated 23.05.1980 bequeathing the plaint schedule property in favour of the 1st defendant. The plaintiff came to know about Ext.B2 Will only from Ext.A4 Reply. Ammalu Amma never executed such a Will. She had no mental capacity to execute any such Will on the date of the alleged execution. Ammalu Amma was not in a proper state of mind to make any such disposition due to her old age. Hence, the plaint schedule is liable to be partitioned, allotting half share to the plaintiff.
3. The 1st defendant filed a Written Statement opposing the prayer for partition, contending that Ammalu Amma had executed Ext.B2 registered Will in favour of the 1st defendant, and hence the property is not available for partition. Mutation of the property was effected in favour of the 1st defendant, and she has been paying land tax. The plaintiff is aware of all these matters. The plaintiff never raised any objection till the filing of the suit. When the 1st defendant decided to sell the plaint schedule property to raise some amounts to pay off her debts, the plaintiff approached the 1st defendant and asked to lend Rs.50,000/- out of sale consideration, which the 1st defendant could not give. On account of this enmity, the present suit is filed by the plaintiff with a false claim.
4. On the death of the 1st defendant during the pendency of the appeal, the additional defendants 2 to 7 were impleaded as her legal representatives.
5. On the side of the plaintiff, the plaintiff was examined as PW1, and Exts.A1 to A4 documents were marked. On the side of the defendants, the 3rd defendant was examined as DW1, and DWs 2 and 3 were examined as attesting witnesses to Ext.B2 Will. Exts.B1 to B5 were marked on the side of the defendants.
6. The Trial Court disbelieved Ext.B2 Will, finding that the defendants failed to prove execution and attestation of Ext.B2 Will as required under Section 63 (c) of the Indian Succession Act and accordingly decreed the suit passing a Preliminary Decree for partition allowing the plaintiff to get partition and separate possession of one-half share of the plaint schedule property.
7. The defendants 2 to 7 filed an Appeal before the First Appellate Court, and the same was dismissed, confirming the judgment and decree of the Trial Court.
8. This Court admitted this Appeal on the following substantial questions of law.
Whether the courts below are justified in holding that Ext.B2 is not genuine and valid?
Whether the courts below failed to consider the impact of Section 71 of the Evidence Act while considering the proof of Will as enumerated in Sec.
