A Will's genuineness cannot be dismissed without fundamental reasoning. Courts must consider substantial evidence and apply relevant legal standards in probate cases.

JUDGMENT

Dated this the 20^th day of Match, 2025

This appeal is preferred challenging the order dated 22.07.2022 of the II Additional District Judge, Ernakulam in O.P. (Probation) No.134 of 2020. Appellant was the petitioner in the said proceedings.

2. Appellant is the daughter of Kulathilparambu Ananthan.

After her father's death, her mother married Ananthan, S/o Adima. The said Ananthan, S/o.Adima, is thus the stepfather of the appellant. He owned 5 cents of property comprised in Sy.No.426, Block No.3, 400/1 of Elamkunnappuzha Village, Kochi Taluk, Ernakulam District. On 19.08.2016, Ananthan, S/o Adima executed an unregistered Will and bequeathed the said property to the appellant. Soon thereafter he died on 16.09.2016. The appellant, being the executor of the Will, moved for probate of the Will. By the very nature of the proceedings, no one had to be arrayed as respondents. The District Court drew up four points for consideration and the appellant tendered evidence. PW1 and PW2 were examined. Exts.A1 to A8 were marked. After hearing the appellant, the District Court dismissed the petition inter alia holding that she had failed to adduce sufficient evidence to prove that late Ananthan, S/o.Adima, was having a disposing state of mind at the time of execution of the Will. It had not been proved that he had put his signature out of his own free Will after knowing the nature of the disposition. It was also concluded by the District Court that there was no proper execution and attestation of the Will as contemplated under Section 63 of the Indian Succession Act, 1925 (hereinafter referred to as “the Act of 1925”) and that the evidence of PW1 and PW2 did not appear to be natural and convincing. The District Court thus held that execution of the Will by the deceased Ananthan, S/o Adima, had not been proved and that the Will was not a ‘genuine one’. The petition for probate was thus declined. The said order of the District Court is challenged in this appeal.

3. Heard Sri. S. Jathin Das, Advocate for the appellant.

4. The learned counsel contended that the District Court erred in dismissing the probate application. The order has been rendered mechanically without a proper application of mind. Though a sweeping observation had been made in the order that the relevant Will is ‘not genuine’ and that the evidence of PW1 and PW2 were ‘not natural and convincing’, no reasoning or explanation is forthcoming from the judgment for arriving at such conclusions. The District Court had failed to take note of a very crucial fact while dismissing the petition. One of the witnesses to the Will, Sri. Selvaraj had been alive at the time of filing the probate petition and he had sworn to an affidavit dated 18.03.2020 (Ext.A5), which had been produced before the District Court along with the petition. The said witness though was ready and available for tendering evidence at the time of filing the probate petition, had passed away during pendency of the proceedings. Hence the said witness could not be examined during the evidence stage of the petition. The affidavit filed by Selvaraj (Ext.A5) since it was available before the Court, could not have been brushed aside. The death certificate of Selvaraj evidencing his date of death had been produced as Ext.A7. The same clearly reveals that he died during pendency of the proceedings. In addition, thereto, the appellant had taken out a notice by way of paper publication on 11.01.2021 and the copy thereof had been produced as Ext.A8. These steps disclose