The execution and attestation of a Will under Section 63(c) of the Indian Succession Act require proof of compliance, determined through evidence presented in contested suits.

JUDGMENT

The plaintiff in a suit for partition non suited concurrently has come up in the present appeal. The plaintiff, defendants 1 to 5 and late Praveena are the children of one Ayyappan and Sarojini. Plaint B Schedule property belonged to Ayyappan by virtue of Document Nos.1977/1952 and 277/1979 of SRO, Kozhikode. Plaint C Schedule property is three shop-rooms bearing Nos.7/932 and 7/933 of Kozhikode Corporation, wherein, the Ayyappan conducted the business in the name and style 'Modern Tailoring & Modern Stores'. Ayyappan expired on 26.3.1993 and thereafter, his wife, Sarojini was looking after the plaint schedule properties. On 22.10.2017, Sarojini expired and thereafter, the plaint schedule properties and business devolved upon the plaintiff and defendants. Thus, plaintiff and defendants 1 to 5 were entitled to 2/14 shares each and defendants 6 to 8 were entitled to 2/14 shares altogether in the properties. Since the request for partition was declined, the suit was filed. The defendant resisted the suit contending that, Late Ayyappan had executed a Will in favour of defendants 1 to 3 on 26.12.1992 and as per the Will, the property exclusively belonged to them and therefore, the claim for partition cannot be accepted. In order to prove the Will, DW 2 to DW4 were examined. DW4 is the attesting witness who had attested the Will and DW3 was examined in order to prove the signature of the second attesting witness in Ext.B1 Will. Based on the evidence of DW 3 and DW 4, the Trial Court declined the claim for partition. Aggrieved, the plaintiff preferred A.S.No.116/2022 which was also dismissed by judgment dated 23.3.2024 and hence, the present appeal.

2. Heard Sri.Denu Joseph, learned counsel appearing for the appellant and Sri.T.Madhu, learned counsel appearing for the first respondent.

3. The learned counsel for the appellant contended that the evidence of DW4 is not sufficient to prove the execution of Ext.B1 Will. Referring to the oral testimony of DW4, learned counsel pointed out that, the attesting witness was not sure as regards the signature of the testator. According to the learned counsel, the DW4 has specifically spoken about the difference of signature of the testator in each page in the Will. It is further pointed out that, if the evidence of DW4 is read as a whole, he has not seen the deceased testator affixing his signature in the Will whereas he has seen the deceased testator affixing signature in the Will on the reverse side of the first page. It is further pointed out that, the propounder was duty bound to discharge the suspicious circumstances surrounding the Will. The signature of the deceased testator was not sent for expert opinion at the instance of the propounder and therefore, the burden casted upon the propounder has not been discharged. In support of his contention, relied on the decision of the Hon'ble Supreme Court in Kavita Kanwar v. Pamela Mehta and Ors. [2020 KHC 6394] to contend that, the disproportionate bequeath made by the testator is a ground to doubt the genuineness of the Will and the propounder must dispel the suspicious circumstance.

4. On an anxious consideration of the submissions raised on behalf of the appellant, this Court is not inclined to admit the appeal since no substantial question of law arises for consideration.

5. The primary contention raised by the learned counsel for the appellant is that, there is no proper attestation in terms of Section 63 (c) of the Indian Succession Act , 1925. In support of his contention, the learned counsel relied extensively on the oral testimony of the DW4, a copy of which is made available before this Court for perusal.