Kerala High Court
Peter vs Mary on 24 June, 2025
RFA 608/2015
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
TUESDAY, THE 24TH DAY OF JUNE 2025 / 3RD ASHADHA, 1947
RFA NO. 608 OF 2015
OS NO.175 OF 2009 OF PRINCIPAL SUB COURT, ERNAKULAM
APPELLANT/DEFENDANT
PETER
S/O FRANCIS, ITHITHARA HOUSE, PANAMBUKADU,
MULAVUKADU VILLAGE.
BY ADVS.
SRI.C.AJITH KUMAR
SHRI.K.J.ABRAHAM
SRI.NIKHIL JOHN
RESPONDENTS/PLAINTIFFS
1 MARY, AGED 76 YEARS
W/O FRANCIS, ITHITHARA HOUSE, PANAMPUKADU,
MULAVUKADU VILLAGE.
2 PHILOMINA, AGED 52 YEARS
D/O FRANCIS, ITHITHARA HOUSE, PANAMPUKADU,
MULAVUKADU VILLAGE.
3 MERCY, AGED 50 YEARS
D/O FRANCIS, ITHITHARA HOUSE, PANAMPUKADU,
MULAVUKADU VILLAGE.
4 LINCY, AGED 48 YEARS
D/O FRANCIS, ITHITHARA HOUSE, PANAMPUKADU,
MULAVUKADU VILLAGE.
5 ROSY, AGED 45 YEARS
D/O FRANCIS, ITHITHARA HOUSE, PANAMPUKADU,
RFA 608/2015
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MULAVUKADU VILLAGE.
6 TESSY, AGED 41 YEARS
D/O FRANCIS, ITHITHARA HOUSE, PANAMPUKADU,
MULAVUKADU VILLAGE.
7 MARY JASMINE, AGED 37 YEARS
D/O FRANCIS, ITHITHARA HOUSE, PANAMPUKADU,
MULAVUKADU VILLAGE.
BY ADV SMT.A.P.LALY @ LALY VINCENT
THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY
HEARD ON 20.6.2025, THE COURT ON 24.06.2025, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
RFA 608/2015
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JUDGMENT
Dated : 24th June, 2025
The defendant in OS 175/2009 on the file of the Sub Court, Ernakulam is
the appellant. (For the purpose of convenience the parties are hereafter referred
to as per their rank before the trial court).
2. The plaintiffs filed this Suit for partition. The defendant is the
brother of the plaintiffs 2 to 7 and the 1st plaintiff is their mother. The plaint
schedule property belonged to Francis, the husband of the 1st plaintiff and the
father of plaintiffs 2 to 7 and defendant, who died on 11.10.1991. According to
the plaintiffs, Francis died intestate and hence, the plaint schedule property is to
be divided into eight shares and they are entitled to get one share each from the
same. The defendant filed a written statement contending that Francis had
executed a will bequeathing the scheduled property in his favour and as such
according to him, the plaint schedule property is not partible. Therefore, he
prayed for dismissing the Suit.
3. The trial court framed six issues. The evidence in the case consists
of the oral testimonies of PW1, DWs1 to 4 and Exts.B1 to B3. After evaluating
the evidence on record, the trial court decreed the Suit and a preliminary decree
was passed directing division of the property into 21shares and allowing 2/21
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share each to plaintiffs 2 to 7 and defendant and 5/21 share to the 1st plaintiff.
Aggrieved by the above judgment and decree passed by the trial court, the
defendant preferred this appeal.
4. Now the points that arise for consideration are the following :
(i) Whether the defendant has succeeded in proving the execution of
Ext.B3 will, after removing all suspicious circumstances surrounding
the same, if any ?
(ii) Whether the impugned judgment and decree of the trial Court
calls for any interference, in the light of the grounds raised in the
appeal ?
5. Heard Sri.Ajith Kumar, the learned counsel for the
appellant/defendant and Smt.A.P.Laly @ Laly Vincent, the learned counsel for
the respondents/plaintiffs.
6. The fact that the plaint schedule property originally belonged to
late Francis is not in dispute. The relationship between the parties is also
admitted. The validity of Ext.B3 will is the only question involved in this case.
The trial court found that the defendant has failed to prove the execution of
Ext.B3 will by Francis. The learned counsel for the appellant would argue that
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in the light of the evidence of DWs2 to 4 the appellant has succeeded in
proving the due execution of Ext.B3 will. On the other hand, the learned
counsel for the respondents would argue that the appellant has not succeeded in
proving the execution of the Will and also in removing the suspicious
circumstances surrounding the same. Therefore, the learned counsel for the
respondents would argue that there is no valid grounds to interfere with the
impugned judgment and decree passed by the trial court.
7. DW2 is the scribe who prepared Ext.B3 will. He deposed before
the Court that as per the instruction of Francis he prepared Ext.B3 will and
handed over the same to Francis. He has not seen Francis affixing his signature
in the will.
8. There are two attesting witnesses to Ext.B3 will. The 1st witness
namely Raphael was no more at the time of the trial. Therefore, his son
I.R.Xavier was examined as DW3. He deposed that Ext.B3 will contained the
signature of his father. However, he could not state anything else about the
execution of Ext.B3 will.
9. The 2nd attesting witness namely Suresh A.G. was examined as
DW4. At the time of evidence, he deposed that Ext.B3 will contained the
signature of Francis and he saw Francis affixing his signature in the said will.
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According to him, after Francis affixed his signature in the will, he also signed
on it. However, during the cross-examination, he deposed that though there are
three signatures of Francis in Ext.B3, he had seen Francis affixing only one
signature and that is on the 2nd page of Ext.B3. He also deposed that his correct
address was not mentioned in Ext.B3.
10. The learned counsel for the respondents would argue that since the
correct address of DW4 is not mentioned in Ext.B3 and he has seen only one of
the signatures of Francis in Ext.B3, his evidence is not sufficient to prove the
due execution of Ext.B3. Further according to the learned counsel, Ext.B3
contained stipulation to the effect that the defendant should conduct the
marriage of plaintiffs 5 to 7 and that the said condition was not complied by
him. On the other hand, relying upon Section 63(c) of the Indian Succession
Act, the learned counsel for the appellant would argue that the said provision
does not require that the attesting witness has to see all the signatures of the
testator in the will and as such, according to him, there is nothing to disbelieve
his evidence. According to him, in the light of the evidence of DW3 along with
that of DW3 the plaintiff proved the due execution of Ext.B3.
11. Section 68 of the Evidence Act dealing with the manner of proof of
execution of a will is extracted below for reference:
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68. Proof of execution of document required by law to be attested.
If a document is required by law to be attested, it shall not be used as
evidence until one attesting witness at least has been called for the purpose
of proving its execution, if there be an attesting witness alive, and subject to
the process of the Court and capable of giving evidence :
[Provided that it shall not be necessary to call an attesting witness in proof
of the execution of any document, not being a Will, which has been registered
in accordance with the provisions of the Indian Registration Act, 1908 (XVI
of 1908), unless its execution by the person by whom it purports to have been
executed is specifically denied.]
12. With regard to the proof of execution of a Will, the Hon'ble
Supreme Court in the decision in Rani Purnima Debi and Another v. Kumar
Khagendra Narayan Deb and Another, AIR 1962 SC 567 held in paragraph
5 as follows :-
"......The onus of proving the will was on the propounder and in the absence of
suspicious circumstances surrounding the execution of the will proof of
testamentary capacity and signature of the testator as required by law was
sufficient to discharge the onus. Where, however, there were suspicious
circumstances, the onus would be on the propounder to explain them to the
satisfaction of the Court before the will could be accepted as genuine. If the
caveats alleged undue influence, fraud or coercion, the onus would be on him
to prove the same. Even where there were no such plea, but the circumstances
gave rise to doubts, it was for the propounder to satisfy the conscience of the
Court. Further, what are suspicious circumstances was also considered in this
case. The alleged signature of the testator might be very shaky and doubtful
and evidence in support of the propounder's case that the signature in question
was the signature of the testator might not remove the doubt created by the
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appearance of the signature., The condition of the testator's mind might
appear to be very feeble and debilitated and evidence adduced might not
succeed in removing the legitimate doubt as to the mental capacity of the
testator ; the dispositions made in the will might appear to be unnatural,
improbable or unfair in the light of relevant circumstances ; or the will might
otherwise indicate that the said dispositions might not be the result of the
testator's free will and mind. In such cases, the Court would naturally expect
that all legitimate suspicions should be completely removed before the
document was accepted as the last will of the testator. Farther, a propounder
himself might take a prominent part in the execution of the will which,
conferred on him substantial benefits. If this was so it was generally treated as
a suspicious circumstance attending the execution of the will and the
propounder was required to remove the doubts by clear and satisfactory
evidence. But even where' there were suspicious circumstances and the
propounder succeeded in removing them, the Court would grant probate
though the will might be unnatural and might cut off wholly or in part near
relations."
13. A Constitutional Bench of the Apex Court in the decision in
Shashi Kumar Banerjee v. Subodh Kumar Banerjee, 1964 KHC 465, with
regard to the mode of proof of Will, held in paragraph 4 in the following
words :-
"The principles which govern the proving of a will are well settled; (see H.
Venkatachala Iyengar v. B. N. Thimmajamma, 1959 (S1) SCR 426 : 1959
AIR(SC) 443) and Rani Purniama Devi v. Khagendra Narayan Dev, 1962 (3)
SCR 195 : 1962 AIR(SC) 567). The mode of proving a will does not ordinarily
differ from that of proving any other document except as to the special
requirement of attestation prescribed in the case of a will by S.63 of the Indian
Succession Act. The onus of proving the will is on the propounder and in the
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absence of suspicious circumstances surrounding the execution of the will,
proof of testamentary capacity and the signature of the testator as required by
law is sufficient to discharge the onus. Where however there are suspicious
circumstances, the onus is on the propounder to explain them to the
satisfaction of the Court before the Court accepts the will as genuine. "
14. In the decision in Meena Pradhan v. Kamla Pradhan, AIR 2023
SC 4680, the Apex Court held in paragraph 11 as follows :-
"In short, apart from statutory compliance, broadly it has to be proved that
(a) the testator signed the Will out of his own free Will, (b) at the time of
execution he had a sound state of mind, (c) he was aware of the nature and
effect thereof and (d) the Will was not executed under any suspicious
circumstances."
15. The law is thus settled that the burden is on the propounder to prove the
due execution of the will. If there is no suspicious circumstances surrounding the
execution of the will, proof of testamentary capacity and signature of the testator by
examining at least one attesting witness as required under section 68 of the Evidence
Act is sufficient to discharge the onus. However, if there are any suspicious
circumstances, surrounding the execution of the will, it is the burden of the
propounder to explain them to the satisfaction of the Court before the will could be
accepted as genuine.
16. Section 63(c) of the Indian Succession Act dealing with the
manner of execution of a will reads as follows :-
"63(c) - The Will shall be attested by two or more witnesses, each of whom
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has seen the testator sign or affix his mark to the Will or has seen some other
person sign the Will, in the presence and by the direction of the testator, or
has received from the testator a personal acknowledgment of his signature or
mark, or the signature of such other person; and each of the witnesses shall
sign the Will in the presence of the testator, but it shall not be necessary that
more than one witness be present at the same time, and no particular form of
attestation shall be necessary. "
17. The above provision does not stipulate that the attesting witnesses
should always see the testator affixing his signature in the will and it is
sufficient that the testator acknowledges his signature to the attestor in the will.
In the instant case, DW4, one of of the attestors has seen the testator affixing
his signature in the 2nd page of Ext.B3. He has not stated that the signature in
the 1st page does not belong to Francis. On a perusal of the signatures of the
testator present in the 1st page as well as in the 2nd page, it can be seen that they
are apparently identical. More over, the crucial terms of the will bequeathing
the property in favour of the defendant is narrated in the 2nd page. In the above
circumstance, merely for the reason that DW4 has not seen the testator affixing
the signature in the 1st page, his evidence attesting Ext.B3 will cannot be
disbelieved, especially because signature of the other attestor was proved
through his son namely DW3.
18. From the evidence of DW1, the defendant, it is revealed that he
himself had conducted the marriage of plaintiffs 5 to 7. During the cross-
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examination, he could not state the details of the amounts spend by him for the
marriage of each of his sisters. During the cross-examination of DW1, nothing
could be brought out to show that he has not complied any of the terms in
Ext.B3. In this context, it is also to be noted that though Francis died in the year
1991, the plaintiffs have filed this Suit only in the year 2009, after 18 years. I
do not find any grounds to disbelieve the evidence of DWs3 and 4 as well as
DWs1 and 2 and there is also no suspicious circumstances surrounding Ext.B3.
In other words, it is to be held that the defendant has succeeded in proving
Ext.B3 will and as such, the trial court was not justified in decreeing the Suit.
Therefore, this appeal is liable to be allowed and the Suit is liable to be
dismissed. Point answered accordingly.
19. In the result, this appeal is allowed. The impugned judgment and
decree of the trial court in O.S. 175/2009 on the file of the Sub Court,
Ernakulam, is set aside. The Suit is dismissed. Considering the facts, I order no
costs.
All pending Interlocutory Applications will stand closed.
Sd/-
C.Pratheep Kumar, Judge
Mrcs/20.6.
