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2025 Supreme(Online)(Ker) 57886
IN THE HIGH COURT OF KERALA AT ERNAKULAM
MR. SATHISH NINAN, P. KRISHNA KUMAR, JJ
SEBASTIAN – Appellant
Versus
RANI – Respondent
RFA NO. 17 OF 2015|OS NO.185 OF 2010
For the Appellants/Petitioners: SRI.N.N.SUGUNAPALAN (SR.), SRI.S.SUJIN
For the Respondents: SRI.K.N.SIVASANKARAN, SHRI.SUNIL SHANKER
In Will disputes, the burden of proof for genuineness rests with the propounder, who must dispel any suspicious circumstances surrounding the Will's execution.
Headnote:(A) Indian Succession Act, 1925 - Section 63 - Due execution and genuineness of Will - Plaintiffs' appeal against dismissal of partition suit based on Ext.A1 Will executed by Tomy Lawrence - Trial court found failure to prove due execution and the genuine nature of the Will - Court’s analysis highlighted suspicious circumstances surrounding execution of the Will and burden of proof on propounders (Paras 21, 22, 23, 26).
(B) Criminal Procedure Code, 1973 - Section 313 - Burden of proof in cases of disputed Wills - Responsibility lies with the proponent to establish authenticity and dispel suspicions surrounding the Will (Paras 21, 24).
Facts of the case:
Plaintiffs claimed rights over assets of deceased Tomy Lawrence based on a Will executed shortly before his death, which the defendants contested, alleging forgery and lack of genuineness.
Findings of Court:
The trial court held that plaintiffs did not sufficiently demonstrate the execution of the Will nor dispelled surrounding suspicions, leading to dismissal of their suit.
Issues: Key questions included the genuineness and execution veracity of Ext.A1 Will and the adequacy of evidence to support plaintiffs' claim.
Ratio Decidendi: The court reiterated that the burden of proof for the genuineness of a Will rests with the propounder, and proof must remove any suspicious circumstances surrounding the Will's execution.
Result: Appeal dismissed.
| Table of Content |
|---|
| 1. suit for partition of assets (Para 1 , 2 , 3) |
| 2. challenge of genuineness of the will (Para 4 , 5) |
| 3. points for determination in appeal (Para 6 , 7) |
| 4. bequest terms of the will (Para 8) |
| 5. burden of proof on propounder of will (Para 9 , 10) |
| 6. witness credibility and evidence reliability (Para 11 , 12 , 13 , 14) |
| 7. circumstances surrounding will execution (Para 15 , 16 , 17 , 18) |
| 8. signature comparison and genuineness concerns (Para 19) |
| 9. proof requirements and judgment references (Para 20 , 21) |
| 10. disinheriting and familial relationships (Para 22 , 23) |
| 11. weight of evidence and trial court observations (Para 24 , 25) |
| 12. conclusion: appeal dismissal with no merit (Para 26) |
JUDGMENT
Sathish Ninan, J.
The suit for partition was dismissed by the trial court. The plaintiffs are in appeal.
2. The first plaintiff is the brother of late Tomy Lawrence. The other plaintiffs are the wife and children of the first plaintiff. The defendants are the wife and son of Tomy Lawrence. The properties sought to be partitioned belonged to late Tomy Lawrence. Tomy Lawrence died on 08.05.2010.
3. The plaintiffs claim that Tomy Lawrence had executed Ext.A1 Will dated 04.05.2010 bequeathing his assets. As per the bequest, the plaintiffs are given shares over his assets along with the defendants. The plaintiffs seek for partition in terms of the Will.
4. The defendants challenged the genuineness of the Will. It was contended that Ext.A1 Will is not one executed by him and that the signature in Ext.A1 Will is not that of Tomy Lawrence.
5. The trial court on appreciation of the evidence held that the plaintiffs have failed to prove the due execution and genuineness of Ext.A1 Will. Accordingly the suit was dismissed.
6. We have heard Sri.N.N.Sugunapalan, the learned Senior Counsel for the appellants-plaintiffs and Sri.K.N. Sivasankaran, the learned counsel for the respondents- defendants.
7. The points that arise for determination in this appeal are :-
(i) Does the evidence on record substantiate the due execution and genuineness of Ext.A1 Will?
(ii) Has the plaintiffs succeeded in dispelling the suspicious circumstances if any surrounding the Will?
(iii) Does the decree and judgment of the trial court warrant any interference?
8. As per the bequest under Ext.A1 Will, the first defendant, who is the wife of Tomy Lawrence is entitled for an amount of ₹ 1,000/- from his pension. There is no other bequest in her favour. Plaint schedule item Nos.4 and 5 is bequeathed in favour of the first plaintiff. Out of the plaint 'B' and 'C' schedule, which are amounts due, the plaintiffs have been bequeathed 40%. Plaint 'A' schedule item No.3 has been bequeathed in favour of the second plaintiff. From item No.6 in plaint 'A' schedule an extent of 15 cents is bequeathed in favour of the third plaintiff. The remaining has been bequeathed in favour of the second defendant. Noticeably, the first defendant-wife has been practically disinherited. So also a substantial portion of the assets are bequeathed in favour of the plaintiffs.
9. The learned Senior Counsel Sri.N.N.Sugunapalan submitted that this is a case where the plaintiffs are not the propounders of the Will. Plaintiffs are not the only legatees under the Will. The Will was produced not by them. There is no evidence that the plaintiffs had taken any active role in the execution of the Will. The trial court went wrong in casting the burden on the plaintiff to prove the signature of late Tomy Lawrence on Ext.A1 Will. The defendants having urged that the signature is forged, it is for them to prove it. The trial court also committed jurisdictional error in having not framed an issue with regard to execution of the Will. The evidence on record reveals that Tomy Lawrence and the defendants were living separately for the past several years and was being taken care of by the plaintiffs, which prompted the late Tomy Lawrence to execute Ext.A1 Will, it is argued.
10. We are unable to agree with the argument of the learned Sen
