Safiya Malik

The High Court of Kerala Division Bench of Justice Sathish Ninan and Justice P. Krishna Kumar held that the execution and attestation of a disputed Will were duly proved and dismissed the appeal challenging the trial court's findings. The Bench stated that the statutory requirements under Sections 68 and 69 of the Indian Evidence Act had been met, and there were no suspicious circumstances undermining the genuineness of the Will. The Court confirmed that the Will executed by the testatrix in favour of one of her sons, which excluded other legal heirs, was legally valid and enforceable.

The Division Bench upheld the trial court's decision to exclude the residential property from the partition sought by the appellant, finding that the Will had been properly executed, registered, and proved. The Court further stated that the delay of over two decades in initiating the challenge, despite earlier acts of possession and mutation by the propounder, added weight to the Will's credibility. Accordingly, the appeal was dismissed, and the judgment of the trial court was affirmed without costs.

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The appellant filed a suit for partition of two properties against her siblings and the legal heirs of deceased family members. The dispute arose over a residential property and adjoining 14.875 cents of land, claimed by the first defendant to be his by virtue of a Will allegedly executed by their mother, the late Smt. P. Bhavani. The trial court partially decreed the suit, excluding the said residential property based on the Will.

The parties to the suit include the plaintiff, a senior consultant in laboratory medicine; the first defendant, a retired Chief Technical Examiner; and the second defendant, a retired army surgeon. The family patriarch, K.S. Raghavan, served as Secretary to the erstwhile Thiru-Kochi Government and died in a plane crash in 1952. Following his demise, his wife and children executed a partition deed covering his properties and some owned by Bhavani.

The residential property in question was originally allotted to their deceased brother Jayasanker, who died intestate and without issue in 1990. Consequently, it devolved upon Bhavani as per the applicable succession law. Bhavani passed away in 1997, allegedly leaving a Will bequeathing the residential property exclusively to her eldest son.

The plaintiff and the second defendant contended that the Will was non-existent and alleged that Bhavani died intestate. They argued that the residential property must be included in the partition among all legal heirs. The first defendant asserted that the Will, executed on 6 April 1988 and registered at the Sub Registrar's Office in Chathamangalam, excluded other heirs and granted the entire residential property to him. He supported his claim with an attested copy of the Will and stated that mutation of the property was carried out in his name soon after Bhavani’s demise.

The plaintiff challenged the Will, alleging Bhavani lacked testamentary capacity at the time of execution due to old age, a prior stroke, and visual impairment caused by macular degeneration. The plaintiff also alleged coercion and undue influence by the first defendant. The first defendant maintained that he was not involved in the Will's drafting and that Bhavani had stayed with their brother-in-law Ramachandran during its execution.

The first defendant produced evidence including Ext. B2 (attested copy of the Will), Ext. B3 (filing sheet), Ext. B4 (thumb impression register), and Ext. B6 (Rent Control Court order) to substantiate the genuineness and continuity of possession. DW5, the document writer who prepared the Will, testified that the testatrix signed it voluntarily in the presence of two attesting witnesses.

The plaintiff questioned the validity of the Will on grounds including the non-examination of the attesting witnesses and the alleged role of "stock witnesses." The plaintiff also claimed that DW5 lacked animo attestandi and questioned the absence of evidence proving the death of attesting witnesses.

The Court began by summarizing the evidentiary obligations under Sections 68 and 69 of the Indian Evidence Act, stating: "The mode of proof of a Will is in the manner provided in Section 68 of the Indian Evidence Act." The Bench clarified that when attesting witnesses are deceased, Section 69 permits proof through handwriting and testimony of a knowledgeable witness.

The Court recorded: "DW5, the scribe of the Will, deposed that Bhavani signed the Will in his presence, and in the presence of attesting witnesses arranged by him, who also signed it." It further noted that DW5 testified to the Will's registration process, including verification by the Sub-Registrar.

On the objection that the attesting witnesses were not examined, the Bench stated: "His version—that those witnesses are now deceased—remains unchallenged." The Court found this testimony sufficient to invoke Section 69, observing that DW5’s evidence was reliable and consistent.

Regarding animo attestandi, the Court stated: "DW5 was not examined as an attesting witness under Section 68. Hence the question of his animus is irrelevant." The Bench also addressed the issue of "stock witnesses," stating: "The mere fact that the witnesses were arranged by DW5 does not throw any cloud on the execution and attestation of the Will."

On the matter of Bhavani's mental and physical condition, the Court found no supporting medical records from the plaintiff or other family members, stating: "There is total lack of evidence to substantiate the same." The Bench noted photographic evidence and testimony confirming Bhavani's sound condition in 1988.

The Court stated: "We find no reason to doubt the soundness of mind and the disposing capacity of the testatrix at the time of execution of Ext. B2 Will." It accepted that Bhavani had reasons to bequeath the property to the first defendant given her residence history and his lack of property.

The Court stated the delay in the suit, stating: "The institution of the suit 21 years after Bhavani’s death is only a speculative challenge." It also noted that the Will’s existence was not denied in earlier proceedings and that the mutation and eviction actions strengthened the case for its validity.

The Court dismissed the appeal and affirmed the trial court’s judgment. It recorded: "We find no reason to interfere with the impugned judgment."

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The final order stated: "Accordingly, the appeal is dismissed, affirming the impugned judgment. No order as to cost. All pending interlocutory applications stand closed, including the one seeking to receive additional evidence."

The Bench held that the first defendant had successfully discharged the burden of proving the Will’s execution and attestation. It concluded: "The evidence on record, along with the circumstances arising therefrom, compels us to conclude that Ext. B2 Will is genuine, and that it was duly executed by the late Bhavani."

The Court thus upheld the exclusion of the residential property from partition and stated that it lawfully devolved to the first defendant under the Will.

Advocates Representing the Parties:

For the Petitioner: Sri. R. Lakshmi Narayan, Smt. R. Ranjanie

For the Respondents: Sri. Nirmal S., Smt. Veena Hari, Sri. K.C. Eldho, Sri. S. Bijilal, Smt. Almajitha Fathima, Smt. Hima Joseph

Case Title: Dr. K.R. Leela Devi v. K.R. Rajaram & Others

Neutral Citation: 2025: KER:36448

Case Number: RFA No. 715 of 2013

Bench: Justice Sathish Ninan, Justice P. Krishna Kumar