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2022 Supreme(Online)(KER) 37139
HIGH COURT OF KERALA
P.SOMARAJAN, J
GOPI – Appellant
Versus
LAKSHMI – Respondent
RFA/298/2019
SRI.PEARL K.DAVIS, SHRI.S.GANESH, SRI.K.S.MANU (PUNUKKONNOOR), T.B.MINI, RESHMA GIRISH
A registered Will must still meet execution requirements, including credible witness attestation and proof that the testator understood its content.
Headnote:
Will - Execution of Will - Indian Succession Act - Sections 63(c) - The court emphasized the necessity to prove the due execution of the Will through competent witnesses and clarified that mere registration does not exempt the propounder from establishing the authenticity of the Will.
Fact of the Case:
The case revolved around the execution validity of a registered Will, challenged based on its proper attestation and whether the testator comprehended its contents. The trial court found it unproven and decreed for partition, prompting an appeal.
Finding of the Court:
The court found that the execution of the Will was not adequately proven, highlighting the absence of critical witness testimony and challenges in establishing the testator's understanding and authorship of the document.
Issues: Whether the execution of the Will was duly proven per legal requirements for testamentary documents, particularly regarding the presence of witnesses and the understanding of the testator.
Ratio Decidendi: The court ruled that the propounders of the Will failed to meet their burden of proof for due execution, emphasizing the necessity for both attesting witnesses to substantiate the execution process.
Final Decision: The trial court judgment was set aside, and the suit was dismissed, allowing the appeal.
JUDGMENT
The dispute involved is pertaining to the due execution of a registered Will Ext.B1, for which one among the propounders gave oral evidence as DW1 and one of the attesting witnesses was examined as DW2. During the cross-examination, nothing was brought out to discredit either the propounder or the attesting witness. The testator was also introduced before the Sub-Registrar for the purpose of its registration by two witnesses and one among the witness is none else, DW2. In fact, no challenge was raised with respect to the competency of the testator. She died in a motor vehicle accident on 27/8/2011 and the Will was executed 12 years prior to the abovesaid alleged accident. But the trial court on some extraneous consideration found that there is failure to prove the due execution of the Will and hence granted a decree for partition. The relevant portion of the impugned judgment (paragraphs 17 to 22) are extracted below for reference:
“17.The one attesting witness examined in his evidence has to satisfy the attestation of a Will by him and the other attesting witness in order to prove there was due execution of Will. To put in other words, if one attesting witness can prove execution of the Will in terms of clause (c) of Section 63 of Indian Succession Act viz, attestation by two attesting witnesses in the manner contemplated therein, the examination of other attesting witness can be dispensed with. The one attesting witness examined, in his evidence has to satisfy the attestation of a Will by him and the other attesting witness in order to prove there was due execution of the Will.
18. In the evidence of DW2 it is lacking that execution of the Will by Thankam was witnessed by him and the other attesting witness. Therefore, it cannot be found that the defendants proved execution of the Will by Thankam.
19. In the cross examination DW3 stated unequivocally that Thankam was illiterate and she could not write or read. A document can said to be duly executed only when it is shown that the executant signed the document of his own volition after fully knowing the content of the document and at the time of execution he was capable of forming a rational judgment as to its effect. In the instant case there is no evidence that the content of the Will was read over to Thankam before she affixed her signature.
20. The defendants have no case that Anthony, the other attesting witness, is dead or not subject to the process of the Court or not capable of giving evidence. No explanation as to why he was not examined before the court was offered. DW3 in his cross examination stated that Thankam did not have acquaintance with Anthony.
21. Another suspicion surrounding execution of the Will is that DW2 was asked by Thankam to be witness only on 22.3.1999. If that be so the Will might have been prepared on 22.3.1999. DW2 did not state that he saw the Will being prepared.
22. The learned counsel for the defendants submitted that the Will is a registered one. It is true that it was registered. The fact that the Will was registered does not relieve of the duty of the propounder to prove its due execution. On account of registration the only presumption which can be drawn is that acts for the registration was performed as being performed.”
2. It is illustrative of what is actually going on in our system. The trial court did not understand the actual dispute involved and the requirement in proof of a testament. Highly extraneous matters were taken to reject the due execution of Will in question such as no case was advanced that the Will was read over to the testator and no case was advanced as to whether the other attesting witness was alive or not. It is a judgment rendered by an officer in the cadre of Principal Sub Judge and that itself would show the seriousness of the laches on the part of the officer. Necessarily, proper training should be given to the officer concerned. The decree and judgment of the trial court are hence set aside and the sui
