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2021 Supreme(Online)(KER) 14777
HIGH COURT OF KERALA
N.ANIL KUMAR, J
GEETHA VISWAMBHARAN – Appellant
Versus
ASOKAN A.P – Respondent
RSA/129/2016
SRI.RENJITH THAMPAN (SR.), SRI.GEORGIE SIMON, SRI.DENY JOSEPH
The propounder of a will must conclusively prove its valid execution and clarify any suspicious circumstances related to its creation.
Headnote:
Wills - Succession - Indian Succession Act, Section 63, Evidence Act, Section 68 - The court emphasized the necessity of proper execution and attestation of wills, noting that the propounder bears the burden of proving non-suspicious execution and testator's capacity.
Fact of the Case:
The plaintiff sought partition of property inherited from parents. The 2nd defendant claimed exclusive rights under a will, alleged to be executed shortly before the testator's death. The plaintiff contended that the will's validity was undermined by suspicious circumstances and lack of proper execution.
Finding of the Court:
The court found that the 2nd defendant failed to prove the validity of the will, citing suspicious circumstances surrounding its execution, including the testator's mental state and improper witness attestations.
Issues: Whether the will was validly executed and whether the trial court erred in its findings regarding partition and the will's legitimacy.
Ratio Decidendi: The court reiterated that the burden of proof regarding the will's authenticity lies with the propounder, requiring removal of any suspicious circumstances affecting its validity.
Final Decision: The appeal is allowed; the properties are declared partible and the plaintiff granted one-third share.
JUDGMENT
This R.S.A. under Section 100 of the Code of Civil Procedure has been filed against the judgment and decree dated 30.9.2015 passed by the Sub Court, Perumbavoor in A.S.No.42/2014, confirming the judgment and decree dated 31.3.2014 passed by the Munsiff's Court, Perumbavoor in O.S.No.114 of 2010 by which the suit filed by the plaintiff for partition was decreed in part and the counter claim filed by the 2nd defendant alleging that he is the owner of the plaint B schedule property and is entitled to get half share in plaint A schedule property is dismissed. The appellants are the plaintiff and the 1st defendant in O.S.No.114/2010 of the Munsiff's Court, Perumbavoor and the respondent is the 2nd defendant in the suit. The parties are hereinafter referred to as the plaintiff and the defendants, according to their status in the trial court unless otherwise stated.
2. The brief facts for disposal of the present appeal in short are hereinbelow:-
The plaint schedule property contains two items of properties, viz., plaint A schedule property, which originally belonged to their father Parameswaran and the plaint B schedule property belonged to their mother Bhavani. Parameswaran died 18 years back. The plaintiff had filed the suit for partition of plaint A and B schedule properties claiming one-third share of the plaint schedule properties to her.
3. The 1st defendant filed a written statement contending that item No.3 in the plaint A schedule property was given to the 1st defendant by his father during his life time and it is not liable to be partitioned. However, the 1st defendant agreed for partition of the entire plaint B schedule property which belonged to Bhavani.
4. The 2nd defendant filed written statement contending that plaint B schedule property belonging to Bhavani is not liable to be partitioned since his mother had executed a registered will No.466/2008 bequeathing the entire plaint B schedule property in his favour. He had also contended that as per the A schedule property, his mother Bhavani's share in the A schedule property as one of the legal heirs of late Parameswaran was also bequeathed in his favour. Hence, he claimed half share in the plant A schedule property as well. He filed a counter claim for the partition of the plaint A schedule property.
5. The plaintiff filed a replication contending that the alleged will was not duly executed and it was created just 14 days before the death of his mother Bhavani. The plaintiff further contended that his mother Bhavani had not executed the will knowingly and out of her own free will, but it was created at the instance of the 2nd defendant under compelling circumstances.
6. The trial court framed the following issues:
“1) Whether the plaint schedule properties are partible and if so what is the share if any to which each of the parties is entitled?
2) Whether the plaintiff is entitled to receive share of profit and if so what is the quantum?
3) Whether the plaintiff is entitled to a permanent prohibitory injunction as prayed for?
4) Whether the counter claim is allowable?
5) Relief and costs ?”
7. The trial court, after recording the evidence of both parties, passed a preliminary decree as follows:-
“1. Plaint A schedule properties are found partible.
2. Plaintiff is entitled to 4/15 share in plaint A schedule properties.
3. 1st defendant is entitled to 4/15 share in plaint A schedule properties.
4. 2nd defendant is entitled to 7/15 share in plaint A schedule properties.
5. Plaint B schedule property is found not partible and is found that the same is belonged to the 2nd defendant.
6. Plaintiff and defendants are entitled to share of profits from plaint A schedule properties as per their share in the landed property from the date of filing of the suit. Profit from plaint A schedule shall be decided at the time of passing final decree.
7. Share of defendants shall be allotted to them on payment of requisite court fee.
8. Any of the parties can file an application of passing a final decr
