Kerala High Court
Jayasree vs Sindhu Ajayan on 4 July, 2025
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
FRIDAY, THE 4TH DAY OF JULY 2025 / 13TH ASHADHA, 1947
RSA NO. 1211 OF 2018
AGAINST THE JUDGMENT AND DECREE DATED 12.10.2018 IN
AS NO.26 OF 2015 OF ADDITIONAL DISTRICT COURT - IV,
PATHANAMTHITTA ARISING OUT OF THE JUDGMENT AND DECREE DATED
IN OS NO.282 OF 2008 OF MUSNIFF COURT,ADOOR
APPELLANTS/RESPONDENTS/DEFENDANTS:
1 JAYASREE
AGED 48 YEARS
D/O. VIJAYA LAKSHMI AMMA, THARUPOTTIL HOUSE,
MUDIYOORKONAM MURI, PANDALAM VILLAGE, PRESENTLY
RESIDING AT MANNICHINETHU KIZHAKKETHIL HOUSE,
ULAVUKKATTU MURI, PALAMEL VILLAGE, PIN-690 504
2 APARNA
AGED 22 YEARS
D/O. JAYASREE,-DO-DO.,
BY ADV SRI.K.P.SREEKUMAR
RESPONDENT/APPELLANT/PLAINTIFF:
SINDHU AJAYAN
AGED 39 YEARS
PLAKKOTTIL HOUSE, MUDIYOORKONAM MURI,
MUDIYOORKONAM P.O., FROM THARUPOTTIL HOUSE,
MUDIYOORKONAM MURI, PANDALAM VILLAGE, PIN-689 516
BY ADVS.
SRI.ALEXANDER JOSEPH
SMT.AKHILASREE BHASKARAN
SHRI.ANTONY NIKHIL REMELO
SHRI.AJITH SUNNY
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON
04.07.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
RSA No.1211/2018
2
2025:KER:48450
'C.R'
EASWARAN S., J.
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R.S.A No.1211 of 2018
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Dated this the 4th day of July, 2025
JUDGMENT
The appeal arises out of the reversal of the judgment and decree
granted by the Munsiff Court, Adoor, in O.S.No.282/2008 by the
Additional District Court - IV, Pathanamthitta, in A.S.No.26/2015.
2. Initially, this appeal was dismissed at the admission stage
by judgment dated 08.01.2019. Aggrieved by the same, the appellant
preferred SLP(C) No.7618/2019, which was converted to Civil Appeal
No.2697/2024 and was ordered by the Hon'ble Supreme Court by
order dated 20.02.2024, setting aside the judgment and remanding
the appeal back for fresh consideration and also for framing questions
of law. Accordingly, by order dated 08.04.2024, this Court admitted
the appeal and framed the following questions of law:
(1) Whether the First Appellate Court is justified in raising issues
which do not have any foundation in the pleadings?
(2) Whether disinheriting a legal heir is, by itself, a suspicious
circumstance?
(3) Whether the First Appellate Court went wrong by going suo motu
into the question of genuineness of Ext.B2 Will, when the same was
not at all under challenge in the suit, the execution of which was
explicitly admitted by the respondent and the cancellation which was
not at all sought for by the respondent/plaintiff?
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3. The brief facts necessary for the disposal of the appeal are
as follows:
The defendants in a suit for partition resisted the claim for
partition based on a Will executed by one Damodara Panicker.
Damodara Panicker married Sankari Amma and had two children, the
plaintiff and late Saranya, who passed away on 04.07.2002. Sankari
Amma died on 19.02.1995 and Damodara Panicker married the 1 st
defendant - Smt.Jayasree on 26.06.1995. On 03.11.1995, he
executed a Will in favour of Smt.Jayasree and late Saranya. However,
there was a clause in the Will was inserted by which the legacy would
lapse on the death of Saranya or if she had died issueless after
marriage and that the property will revert to Smt.Jayasree, who is the
second wife of late Damodara Panicker. The plaintiff contended that
she is entitled for the partition of the plaint schedule property and one
third share to be allotted to her. Later, when the defendants appeared
and contested the suit by raising a defense based on Ext.B2 Will, the
plaintiff sought amendment of the plaint questioning the validity of the
Will insofar as the share of Saranya getting lapsed on account of her
death. The said application was however dismissed, but still, the
plaintiff proceeded to contest the suit without questioning the said
rejection of the amendment. Initially, the suit was dismissed by
judgment and decree dated 26.02.2013. Aggrieved by the judgment
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and decree, the plaintiff preferred A.S.No.111/2013 and by judgment
dated 09.07.2014, the dismissal of the suit was set aside, and the
matter was remanded back for fresh consideration by the First
Appellate Court. Pursuant to the remand, the Trial Court by judgment
dated 28.10.2014 dismissed the suit, since the defendants were able
to prove the Will in accordance with Section 68 of the Indian Evidence
Act, 1872, by examining the attesting witness. On appeal by the
plaintiff, the First Appellate Court reversed the judgment of the Trial
Court and decreed the suit finding that the execution of Will is
surrounded by suspicious circumstances. Thus, the defendants are
before this Court in the present appeal.
4. Heard, Sri.K.P.Sreekumar - learned counsel appearing for
the appellants/defendants and Sri.Alexander Joseph - learned counsel
appearing for the respondent/plaintiff.
5. Sri.K.P.Sreekumar - learned counsel appearing on behalf of
the appellants, pointed out that the parties are bound by the remand
order passed by the Appellate Court on 09.07.2014. With the
defendants having complied with the requirement of examining the
attesting witness, the plaintiff cannot turn around and contend that
the Will was surrounded with suspicious circumstances. The Trial Court
did not entertain any doubt as regards the execution of the Will.
However, the First Appellate Court framed certain points suo motu and
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decided that the Will was vitiated because the propounder could not
dispel the suspicious circumstances and therefore, the judgment
impugned in the appeal cannot be sustained.
6. On the other hand, the learned counsel appearing for the
respondent - Sri.Alexander Joseph, would submit that the exclusion of
the plaintiff, who is the daughter out of the first wedlock, is certainly a
suspicious circumstance. The Will is vitiated by fraud and coercion
and thus Section 61 of the Indian Succession Act, 1925, comes into
operation and therefore, the First Appellate Court was justified in
decreeing the suit. In support of his contentions, he relied on the
decisions of the Hon'ble Supreme Court in Shivakumar & Ors. v.
Sharanabasappa & Ors [(2021) 11 SCC 277], Srinivasa S.R. v.
S. Padmavathamma [(2010) 5 SCC 274] and Laxmanan K. v.
Thekkayil Padmini & Ors. [(2009) 1 SCC 354].
7. I have considered the rival submissions raised across the
Bar and have perused the judgment of the courts below and also the
records.
8. As stated above, one of the prime consideration which this
Court must bestow upon is as regards the exercise undertaken by the
First Appellate Court in formulating certain issues which did not have
any foundation in the pleadings. This question assumes significance
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especially since the First Appellate Court formulated certain questions
by itself and did not deem it appropriate to grant an opportunity to the
defendants to answer those questions. On a larger perspective,
whether the First Appellate Court could formulate suo motu points
touching upon a possible suspicious circumstances surrounding the
Will. It is pertinent to mention that the Trial Court did not entertain
any such suspicious circumstances. Therefore, on appeal, when the
First Appellate Court is judging whether the Trial Court was justified in
dismissing the suit, could not have entertained its own observations
regarding the suspicious circumstances that allegedly surrounds the
Will. Therefore, it is inevitable for this Court to hold that the issues
raised by the First Appellate Court did not have the foundation in the
pleadings.
9. In Rajagopal Vs Kishan Gopal [AIR 2003 SC 4319], the
Supreme Court held that court could not have gone into certain
findings even if some evidence was adduced. Therefore it is clear that,
the questions formulated by the First Appellate Court had no legal
foundation in the pleadings of the plaintiff.
10. However, Sri.Alexander Joseph - learned counsel for the
respondent/plaintiff, submitted that it is the duty of the propounder to
dispel any suspicious circumstances and that to establish the presence
of suspicious circumstances, there need not be any foundation in the
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pleadings. The above argument is solely based on the decision of the
Hon'ble Supreme Court in Shivakumar (supra).
11. However, it must be noticed that the appellant herein was
completely taken by surprise on the views expressed by the first
appellate court. It is not clear from the reading of the decision of the
first appellate court that the appellant was given an opportunity to
explain the alleged suspicious circumstances entertained by the court.
This is more so when, during the examination of PW1, she admitted
the execution of the Will by her father, late Damodara Panicker.
However, it is also pertinent to mention that the application for
amendment filed by the plaintiff, questioned only the reversion of the
share held by Saranya, her sister, to the second wife of late Damodara
Panicker.
12. A perusal of the affidavit accompanying the application
shows that the plaintiff had accepted the Will. Request for
amendment was turned down by the Trial Court which has not been
carried forward and the same is admitted by PW1 in her evidence. It
is true that mere admission by the plaintiff regarding the 'Will', will
not ipso facto enable the defendants to contend that the Will need not
be proved in terms of Section 68 of the Evidence Act. But the
defendants could always contend that the admission of the Will by the
plaintiff would prove a long way to show the genuineness of the Will.
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The defendants having succeeded in examining the attesting witness
and thereby complying with the mandate under Section 68 of the
Evidence Act, was successful in proving the execution of the Will. On
a close reading of the oral testimony of DW1, the 1 st defendant, as
well as DW2, the attesting witness, it is clear that the plaintiff could
not elicit any substantial contradiction or generate any suspicious
circumstances as regards the execution of the Will.
13. The next question to be considered is as regards the
unnatural disposition in the "will". The question whether an unnatural
disposition in a 'will' constitutes a suspicious circumstance or not, has
always been a disputable point. There are divergent views on the
proposition.
14. In Hall v. Hall [(1868) LR 1 P&D P 481], Sir.J.P.Wilde
summarized the law thus,
"......But all influences are not unlawful. Persuasion, appeals to the
affection or ties of kindred, to a sentiment of gratitude for past
services, or pity for future destitution , or like -these are all
legitimate, and may be fairly pressed on a testator. On the other
hand, pressure of whatever character, whether acting on the fears
or the hopes, if so exerted as to overpower the volition without
convincing the judgment, is a species of restraint under which no
valid will can be made. Importunity or threats such as the testator
has the courage to resist, moral command asserted and yield to
for the sake of peace and quite or of escaping from distress of
yielded to for the sake of peace and quiet or of escaping from
distress of mind or social discomfort, there's if carried to a degree
in which the free play of the testator's judgment, discretion, or
wishes, is overborne, will constitute undue influence, though no
force is either used or threatened. In a word, a testator may be
led but not drive: and his will must be the offspring of his own
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volition, and not the records of someone else's."
15. As far as Indian law is concerned, the Succession Act 1925.
Section 61 enacts that:
"61- Will Obtained by frauds , coercion or importunity-
A will or any part of a will, making of which has been caused
by fraud, or coercion or by such importunity as takes away the
free agency of the testator is void."
16. Section 61 of the Succession Act 1925 came up for
consideration before the Supreme Court in Naresh Charan Das
Gupta v. Paresh Charan Das Gupta [(1954) 2 SCC 800] The
Supreme Court quoted with approval the passage in Hall v. Hall and
held that "even if the disposition in the will were unnatural in that the
appellant had been practically disinherited and his children altogether
ignored, this by itself cannot lead to any inference of undue influence.
On the part of the first respondent....." Further in Para 11 it was held.
"it is elementary law that it is not every influence which is brought to
bear on a testator that can be characterized as "undue". It is open to a
person to plead his case before the testator and to persuade him to
make a disposition in his favour. And if the testator retains his mental
capacity, and there is no element of fraud or coercion - it has often
been observed that undue influence may in the last analysis brought
under one or other of these categories - the will cannot be attacked on
the ground of undue influence."
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17. Pertinently, the above decision was rendered by a four
member bench and when Shivakumar (supra) was rendered the
binding precedent of a larger bench was not noticed by the Supreme
Court. Therefore, this court is bound to apply the decision of the larger
bench in Naresh Charan Das Gupta (supra) and not Shivakumar
(supra).
18. Moreover, as argued by the learned Counsel for the
Respondent, it is not a case of unnatural disposition. Here, late
Damodara Panicker, the testator, had preferred his second wife as the
legatee instead of the plaintiff/his daughter. The reason why the
testator preferred his second wife over his daughter from first wedlock
is best known to the testator alone. It is not for the court to sit on a
roving enquiry as regards the said disposition and hold that the same
is unnatural. At any rate, preferring a legal heir over another heir
cannot be termed as unnatural disposition. On contrary, the testator
had given Item no.2 of Ext.B2 Will to Saranya, his second daughter
from the first wedlock. However, the problem arose because testator
provided the lapsing of legacy if Saranya died before the death of the
testator, the legacy would revert back to the 1st defendant.
19. The first appellate court formed an opinion that because of
the clause in Ext.B2 Will, wherein the legacy in favour of Saranya is
said to have lapsed created a suspicious circumstance. This court
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could not find any rationale behind this finding. Read as may, this
Court could not persuade itself to hold that the presence of the said
clause is a suspicious circumstance. This is more so because even
going by the provision of Succession Act 1925, if the legatee does not
survive the testator the legacy lapses. Section 105 of the Succession
Act 1925 reads as under-
"105- In what case legacy lapses :-
(1) If the legatee does not survive the testator, the legacy
cannot take effect, but shall lapse and form part of the residue of
the testator's property, unless it appears by the will that the
testator intended that it should go to some other person.
(2) In order to entitle the representatives of the legatee to
receive the legacy, it must be proved that he survived the
testator."
When the statute itself provides for lapsing of the legacy, it passes
ones comprehension as to how the first appellate court entertained a
doubt as regards the same, as amounting to the suspicious
circumstances. The Will, stated to be the intention of the last wish of
the dead person, the courts cannot sit in and conduct a roving enquiry
as to the circumstances surrounding the execution of Will by which
one of the legal heirs were excluded. The courts are required to
accept the last testament of the testator rather than disbelieving it.
Viewed in this perspective, this Court cannot but answer the second
question of law in favour of the appellant.
20. The learned counsel for the respondent/plaintiff raised a
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serious dispute as regards the manner of execution of Ext.B2 Will.
According to him, the First Appellate Court had rightly found that the
Will was surrounded by suspicious circumstances. It is a specific case
that the conditions prescribed under Section 61 of the Indian
Succession Act is attracted in the present case. The testator was aged
45 years at the time of execution of the Will and that his second
daughter was only 2¾ years of age. The Will happened to be
executed within five months of his remarriage and therefore, it shows
the influence exerted by the 1st defendant on the testator. It is in this
context that the learned counsel for the respondent/plaintiff submitted
that the First Appellate Court was justified in formulating the issues
regarding the suspicious circumstances surrounding the Will. However,
this Court is afraid that the contention cannot be accepted in view of
the specific admission by the plaintiff during the cross-examination as
regards the Will. She had no case that the Will was surrounded by
suspicious circumstances.
21. In Derek A.C. Lobo & Ors. v. Ulric M.A. Lobo (dead)
by Lrs & Ors. [2023 SCC Online 1893], the Hon'ble Supreme Court
held that once the burden of proof is discharged by the propounder in
terms of Section 63 of the Succession Act and 68 of the Evidence Act
and by adducing prima facie evidence proving the competence of the
testator, the onus is on the contestant opposing to show prima facie
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the existence of suspicious circumstances so as to shift the onus on
the propounder to dispel them. The Supreme Court further held that
without knowing the circumstances, which according to the contestant
opposing are suspicious, the propounder cannot dispel them and
convince the court about his genuineness and validity. Thus, the
Supreme Court concluded that the contestant opposing the Will has to
raise surrounding suspicious circumstances specifically and not
vaguely or in a general manner. Paragraph 16 of the judgment is
extracted hereunder:
"16. In the light of the aforesaid decisions, it can be safely said that
once the burden to prove is discharged by the propounder in terms of
Section 63 of the Succession Act and Section 68 of the Evidence Act,
and by adducing prima facie evidence proving the competence of the
testator, the onus is on the contestant opposing to show prima facie
the existence of suspicious circumstances so as to shift the onus on
the propounder to dispel them. Without knowing the circumstances,
which according to the contestant opposing are suspicious, how will
the propounder be able to dispel them and to convince the court
about its genuineness and validity. We are saying that the contestant
opposing the Will has to raise surrounding suspicious circumstances
specifically and not vaguely or in a general manner. A case of well-
founded suspicion has to exist to cause shifting of onus back to the
propounder once he discharged his burden to prove the execution of
the Will. We may hasten to add that we shall not be understood to
have held that failure of the party/parties to plead suspicious
circumstances would automatically make the court to take a Will as
validly proved even where the circumstance(s) raising doubt is
inherent in the document. Certainly, in such circumstances the
propounder has to convince the court and dispel such suspicious
circumstances."
22. From the ratio decidendi culled out from the decision of
the Hon'ble Supreme Court in Derek A.C. Lobo (supra), the
judgment of the First Appellate Court is clearly erroneous and cannot
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be sustained. Therefore, answering the third question, it is held that
in the absence of any specific challenge in the suit regarding the
genuineness of Ext.B2 Will, the First Appellate Court could not have
entertained the plea of the plaintiff.
Resultantly, the questions of law raised being answered in favour
of the appellants, it becomes inevitable for this Court to hold that the
judgment of the First Appellate Court requires to be interfered.
Accordingly, this appeal is allowed by reversing the judgment and
decree passed by the Additional District Court - IV, Pathanamthitta, in
A.S.No.26/2015 and restoring the judgment and decree of the Trial
Court in O.S.No.282/2008. No order as to cost.
Sd/-
EASWARAN S.,JUDGE
ACR
