The main legal point established in the judgment is the onus of proving the Will on the propounder, the testamentary capacity of the testator, and the need to prove the absence of suspicious circumstances.

JUDGMENT:

S.B. SINHA, J -

1. Leave granted.

2. The question involved in this appeal is the validity of a Will dated 07.08.1971 executed by one Sankaran Nair.

3. For the sake of convenience, the genealogical table may be noticed at the outset :

Krishnan Nair(brother) Kochukutty @ Kuttipenamma [Died unmarried in 1971] [sister] [Dead]

Sankaran Nair [Died in 1978] Nanikutty Amma [Dead]

Madhavan Nair D-1 D-2 | D-3 to D-8

4. The properties in suit were purchased by Krishanan Nair and Kochukutty @ Kuttipennamma, mother of Respondent Nos. 1 and 2 and grandmother of Respondent Nos. 3 to 8 herein. Krishnan Nair was a bachelor. Kochukutty had two children, Sankaran Nair and Nanikutty Amma. They were governed by Marumakkattayam School of Law. Appellants herein are wife, son and daughters of Madhavan Nair son of Sankaran Nair (Plaintiff). Respondent Nos. 1 and 2 herein (Original Defendant Nos. 1 and 2) and Respondent Nos. 3 to 8 herein (Original Defendant Nos. 3 to 8) are children and grandchildren respectively of Nanikutty Amma (sister of Sankaran Nair). Sankaran Nair died in 1978. Indisputably, the relationship between Sankaran Nair and his wife was strained. They were living separately. Sankaran Nair had been living with his sister and her children. They were looking after him. He was suffering from cancer. Respondents herein were bearing all costs for his treatment.

Execution of the said will is not in dispute. What is contended is that the same was surrounded by suspicious circumstances which, according to the appellants, were :

1. Registrar was brought to the house of the propounder which proves that the testator was not in good health and mental condition at the time of execution of the Will.

2. DW-2, who was an attesting witness to the Will, in his deposition stated that he had not seen the execution of the Will. He had also no previous acquaintance with the parties.

3. Other witnesses to the execution of the Will were beneficiaries under the Will.

4. Even when execution and registration of the Will had taken place at the house, there was no reason as to why anybody from the locality had not attested the Will as a witness.

5. In the year 1986, Plaintiff having come to know that Respondent No. 3 was going to construct a house on the said land, filed a suit for partition as also for cancellation of the said Will. The said suit was decreed by the learned Subordinate Judge by a judgment and order dated 18.01.1992, holding, inter alia, :

“The plaintiff had stated that at the time of execution of the will the testator was not in a sound disposing state of mind and he did not sign the document after knowing the contents of the same. In such circumstances, the propounder has to prove that the testator signed the document in the presence of two attesting witnesses who signed it in the presence of each other. The important aspect is that Sankaran Nair was not having testamentary capacity at the time of execution of Ext. A1 is more or less admitted by the defendants. In chief examination of PW-4 he has stated that the Sankaran Nair was not able to execute Ext. A4 and he was not in such a mental condition to execute such a document. That statement in chief examination is not cross-examined

It was further observed :

“The definite case of the plaintiff is that all the documents were executed at the instance of Narayanan Nair. On cardinal scrutiny of the entire evidence as a whole it can be seen that Narayanan Nair is the actual person behind the execution of all the documents

The learned Trial Judge also observed :

“It is also not proved whether the testator signed the document after knowing the contents of the documents. If the relationship of the testator with the son was so strange, there was no necessity for him to reserve Rs.500/- to his son in Ext.A4. If he reserves Rs. 500/- to his son in Ext. A4 that means he has an affection towards his son during his life time. Therefore, he might have inten