The burden of proving the validity of a will lies with the proponents, who must dispel any suspicious circumstances surrounding its execution.

JUDGMENT

This appeal arises out of the concurrent findings rendered by the II^nd Addl. Sub Court, Ernakulam in O. S. No. 872 of 2010 as affirmed in A.S.

No. 102 of 2012 by the VI^th Addl. District Court, Ernakulam.

2. The brief facts necessary for the disposal of the appeal are as follows;

2.1. The respondents filed a suit for partition claiming share in the plaint schedule property of the 1st respondent’s predeceased husband who is the son of late K. P. Jagadas. The 1^st respondent/plaintiff is the wife of Vineeth who pre-deceased his father K. P. Jagadas on 08.11.2008 and the 2^nd respondent is the son of late Vineeth. Subsequently, Sri. K. P. Jagdas died intestate on 08.05.2010. The appellants herein are the wife and the daughter of deceased K. P. Jagadas. 9 cents of land with a building comprised in Sy. No. 1244 of Nadama Village belonged to K. P. Jagadas as per Sale Deed No. 2375 of 1989 of SRO, Thrippunithura. Therefore, the plaintiffs/respondents claim 3/9 share from the appellants/defendants. The appellants/defendants resisted the suit by contending that deceased K. P. Jagadas had executed a registered Will in their favour on 01.04.2009. Subsequently, the plaintiffs amended the suit by questioning the Will dated 01.04.2009 on the ground that the bequeath is unnatural since the rightful share of the pre-deceased son has been completely excluded and, therefore, the exclusion of the natural heir is a suspicious circumstance surrounding the execution of the Will. In the light of these contentions, the parties went to trial and Exts. A1 to A6 were marked on behalf of the plaintiffs and Exts. B1 to B3 were marked on behalf of the defendants. The 1^st plaintiff was examined as PW1 and defendants examined DW1 to DW4. DW3 and DW4 are attesting witnesses who witnessed the execution of Ext.

B2 Will.

2.2. The Trial Court disbelieved the evidence of DW3 and DW4 and found that the attestation is improper and the propounder not able to remove the suspicious circumstances surrounding the execution of the Will. While holding so, the Trial Court held that the exclusion of the natural heir is not possible. Accordingly, the plaint schedule property was ordered to be partitioned by dividing the property into 9 equal shares and 3 shares were allotted to the plaintiffs. Aggrieved, the defendants preferred A.S. No. 102 of 2012 before the VI^th Addl. District Court, Ernakulam. By judgment dated 18.11.2014, the appeal was dismissed and, hence the present appeal.

3. While the appeal was admitted to file on 26.02.2015, this Court framed the following substantial questions of law for consideration;

“1. Whether the courts below are legally justified in finding that Ext. B2 Will was not properly proved to be a genuine will executed by late K. P. Jagadas?

2. In the absence of any pleadings or proof regarding any vitiating circumstances in the execution of Ext. B2 Will, was it proper for the courts below to find that the propounder of the will did not prove the same?”

4. Heard Sri. R. Lakshmi Narayan, the learned Senior Counsel appearing on behalf of the appellants assisted by Smt. R. Ranjanie and Smt. Renju Renjith, the learned Counsel appearing for the respondents.

5. Sri. R. Lakshmi Narayan, the learned Senior Counsel appearing on behalf of the appellants contended that the finding of the Courts below touching upon the validity of the Will is perverse since both the attesting witnesses clearly deposed that they have seen deceased K. P. Jagadas affixing his signature in the Will. The learned Senior Counsel further submitted that the Will is admittedly a registered will and a presumption as regards its execution is raised subject to the propounder discharging t