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2025 Supreme(Online)(Ker) 22552
IN THE HIGH COURT OF KERALA AT ERNAKULAM
A. BADHARUDEEN, J
K.S.DINACHANDRAN – Appellant
Versus
SHYLA JOSEPH – Respondent
RFA NO. 915 OF 2012
For the Appellants/Petitioners: SRI.S.VINOD BHAT, SRI.LEGITH T.KOTTAKKAL
For the Respondents: SRI.K.R.VINOD, SRI.P.N.SASIDHARAN, SMT.C.A.ANUPAMA, SRI.N.M.MOHAMMED AYUB, SRI.P.V.SHAMSUDDIN
The court upheld that the defendants failed to prove the execution and attestation of the Will, confirming the trial court's preliminary decree of partition among siblings.
Headnote:(A) Code of Civil Procedure, 1908 - Sections 96, Order XLI Rule 1 and 2 - Indian Succession Act - Section 63(c) - Evidence Act - Section 68 - Preliminary decree of partition - Defendants failed to prove execution and attestation of Will - Properties originally belonged to deceased - Trial court's finding upheld. (Paras 8, 9, 25)
(B) Will - Requirements for proving a Will - The court must consider execution by the testator and attestation by witnesses - Evidence must satisfy prudent mind, not mathematical accuracy - Presence of witnesses at signing not mandatory. (Paras 10, 11)
Facts of the case:
The plaintiff sought partition of properties inherited from their father, who died intestate. Defendants claimed rights under a Will, which they failed to prove.
Findings of Court:
The trial court found the defendants did not prove the Will's execution and attestation, leading to a decree for partition.
Issues: Whether the trial court erred in its finding regarding the Will's validity and whether the appellate court should interfere with the trial court's decision.
Ratio Decidendi: The court affirmed that the defendants failed to satisfy the statutory requirements for proving the Will, thus upholding the trial court's decision.
Result: Appeals dismissed.
| Table of Content |
|---|
| 1. defendants challenge preliminary decree of partition. (Para 1 , 2) |
| 2. plaintiff claims partition based on intestacy; defendants cite a will. (Para 5 , 6) |
| 3. trial court found will not properly proven by defendants. (Para 8 , 9 , 10) |
| 4. arguments regarding the evidence of witnesses and prior suits. (Para 13 , 18 , 19) |
| 5. court considers statutory requirements for proving a will. (Para 14 , 15 , 16) |
| 6. court evaluates the credibility of evidence regarding will's execution. (Para 22 , 24) |
| 7. court upholds trial court's finding; appeals dismissed. (Para 25 , 26) |
COMMON JUDGMENT
Dated this the 10th day of January, 2025
R.F.A. No.915 of 2012 has been filed by the 1st defendant in O.S. No.633/2011 on the files of the II Additional Sub Court, Ernakulam under Section 96 read with Order XLI Rule 1 and 2 of the Code of Civil Procedure, 1908 , challenging the preliminary decree of partition passed in the above case dated 14.06.2012. The respondents herein are the plaintiff and other defendants.
2. R.F.A. No.82 of 2013 is also filed challenging the preliminary decree of partition in O.S. No.633/2011, at the instance of defendants 2, 3 and 5 to 8, arraying the plaintiff and other defendants as the respondents.
3. Heard the learned counsel for the appellants and the learned counsel appearing for the respondents, in detail. Perused the verdict under challenge and the records of the trial court.
4. Parties in these appeals shall be referred as “plaintiff” and “defendants” with reference to their status before the trial court.
5. Short facts:- The plaintiff instituted a suit seeking partition of the plaint schedule properties and to allot 1/9 share to her, contending that the plaint schedule properties were originally owned by one Sreedharan, who is the father of the plaintiff and defendants and he died intestate.
6. The defendants resisted the suit mainly relying on Will Deed No.26/1988 of SRO, Ernakulam dated 26.03.1988 asserting that, as per the Will, late Sreedharan transferred his right to the defendants in exclusion of the plaintiff and they perfected title in the respective shares in terms of the Will. Therefore, the plaint schedule properties are not partible.
7. The trial court ventured the matter, after raising necessary issues. Exts.A1 and A2 marked on the side of the plaintiff. DWs 1 and 2 examined and Exts.B1 to B12 marked on the side of the defendants. Ext.B2 is the Will.
8. On anxious consideration of the evidence tendered, the learned Sub Judge found that the defendants failed to prove the due execution and attestation of Ext.B2 Will and therefore, the plaint schedule properties are partible. Accordingly, preliminary decree of partition was passed by allotting 1/9 share to the plaintiff and defendants 1 to 8.
9. While assailing the judgment of the trial court, the main challenge raised by the defendants is regarding the finding of the trial court that defendants miserably failed to prove the execution and attestation of Ext.B2. It is zealously argued that, there are two attesting witnesses in Ext.B2, out of which, as per the proof afÏdavit filed by DW1, he asserted that Sri.Xavier was no more. Accordingly, the remaining attesting witness Sri.Sadanandan got examined. After reading the evidence given by DW2, regarding the manner in which he had signed in the Will, it is pointed out by the learned counsel for the defendants that, DW2 given evidence that he signed in the Will in the presence of the testator and he also witnessed the testator signing the same. Further, DW2 also given evidence that, DW2 and others signed in the Will on the same day. Relying on his evidence, it is pointed out that, when the evidence of DW2 is taken together, the essentials necessary to prove a Will, within the ambit of Section 63 (c) of the Indian Succession Act read with Section 68 of the Evidence Act are complied and therefore, the trial court failed in holding that Ext.B2 was not properly proved.
10. The learned counsel for the defendant
