The court highlighted the importance of expert examination of wills and proper evidentiary procedures to ensure fair adjudication of testamentary disputes.

JUDGMENT

Lakshmi Nethiyaramma had six sons and a daughter. The plaintiff, Sankarankutty Achan was one of them. The defendant is the daughter of another son of Lakshmi Nethiyaramma, late Pankajakshan Pillai.

2. The plaint schedule property admittedly belonged to late Lakshmi Nethiyaramma. She put up the house in the property and was residing therein. There is not much dispute regarding the fact that till 1985 the defendant was staying with Lakshmi Nethiyaramma and was looking after her. Lakshmi Nethiyaramma on 21.5.1979 executed Ext.B2 Will, genuineness of which is not in dispute. The allegation is that in 1983 the testator cancelled Ext.B2 Will and executed Ext.A1 Will. While under Ext.B2 Will the sole beneficiary was the defendant, under Ext.A1 Will it was the plaintiff and four others. Under Ext.A1 Will the defendant was totally excluded. Even after the death of Lakshmi Nethiyaramma according to the defendant, she continued to reside in the property as a matter of right. The plaintiff on the other hand would say that she was permitted to continue the residence in the house. According to the original plaintiff, he was employed outside and was not in a position to reside in the house at that point of time. Later when the plaintiff asked the defendant to vacate the premises, she refused to do so and raised untenable contentions and hence the suit.

3. During the pendency of the suit the plaintiff expired and his legal representatives were brought on the party array.

4. The suit was resisted by the defendant by pointing out that the house was not put up by Lakshmi Nethiyaramma as alleged, but it was put up by the husband of the defendant and they along with Lakshmi Nethiyaramma was residing there. In 1985 Lakshmi Nethiyaramma left the house to stay with her son. The defendant continued her residence in the house already made mention of. The defendant was looking after Lakshmi Nethiyaramma. Even after the death of her husband, the defendant continued to reside in the property and at the relevant time was trying to put up a new house in the property. According to her, Ext.B2 is the last testamentary Will executed by Lakshmi Nethiyaramma. She disputed that Ext.A1 Will was executed by Lakshmi Nethiyaramma and also contended that it was a concocted and fabricated one and if at all it was executed, it was under threat, coercion and undue influence. No right accrued as per Ext.B2 Will. On the basis of these contentions, she prayed for a dismissal of the suit.

5. It would be evident from the pleadings that the core issue that was agitated before the court below was regarding the genuineness of Ext.A1 Will and whether it was executed by Lakshmi Nethiyaramma. The main issue thus involved in the suit was the genuineness of the said Will.

6. The evidence consists of the testimony of P.Ws. 1 to 4 and documents marked as Exts.A1 to A5 from the side of the plaintiffs. The defendant had D.Ws.1 and 2 examined and Exts.B1 to B4 marked. Both the courts below on an appreciation of the evidence came to the conclusion that due execution of Ext.A1 Will was not proved and also that its execution was shrouded under mystery and suspicious circumstances. Consequently the suit was dismissed and it was confirmed in appeal.

7. In this Second Appeal the following questions of law are seen raised for consideration:

“(i) When it is proved that a Will has been executed by the testator in presence of two witnesses and they have signed in presence of each other and the executor has got testamentary capacity will not the burden of proof to prove coercion, undue influence, fraud etc. shift to the person who makes such allegations?

(ii) Can the bequeath made by a mother in favour of her sons cancelling an earlier bequeath made in favour of a grandchild be termed as not a normal act expected from a normal person?

(iii) Is not the courts below went wrong in ignoring the fact that the Will is a registered one as an added circumstance in favour of the Will?”

8. Shri. T.Krishnanu