Dismissed

Sheela v. Alli

Kerala HC25 Jul 2019RSA/410/2010

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed an appeal against the decree upholding that the propounder failed to prove the due execution of the impugned will. The court held that the propounder could not dispel suspicious circumstances, particularly the total exclusion of legal heirs immediately before the testator's suicide and lack of proof of statutory compliance.

What did the court decide?

The regular second appeal is dismissed with no costs being awarded to either party.

Sheela Vs Alli — Succession and Inheritance | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE P.SOMARAJAN

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THURSDAY, THE 25TH DAY OF JULY 2019 / 3RD SRAVANA, 1941

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RSA.No.410 of 2010 (F)

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AGAINST THE DECREE & JUDGMENT DATED 16.10.2009 IN AS No.66/2002 of DISTRICT COURT, PATHANAMTHITTA

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AGAINST THE DECREE & JUDGMENT DATED 12.04.2002 IN OS No.332/1996 of MUNSIFF COURT, PATHANAMTHITTA

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APPELLANTS/APPELLANTS/DEFENDANTS:

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1 SHEELA, W/o RAJAN, PUTHENPARAMBIL HOUSE, KOTTAKAKAM, EDAYARANMULA MURI, ARANMULA VILLAGE, KOZHENCHERRY, PATHANAMTHITTA.

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2 RAJAN, PUTHENPARAMBIL HOUSE, KOTTAKAKAM, EDAYARANMULA MURI,

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ARANMULA VILLAGE, KOZHENCHERRY, PATHANAMTHITTA.

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BY ADV. SRI.JACOB P.ALEX

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RESPONDENTS/RESPONDENTS/PLAINTIFFS:

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1 ALLI, W/o LATE NARAYANAN, VIDYA BHAVAN, PACHAKKARA, PALODE VILLAGE, THIRUVANANTHAPURAM.

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2 VIDHYA, VIDYA BHAVAN, PACHAKKARA, PALODE VILLAGE, THIRUVANANTHAPURAM.

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3 DIVYA, VIDYA BHAVAN, PACHAKKARA, PALODE VILLAGE, THIRUVANANTHAPURAM.

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R1 TO R3 BY ADV. SRI.C.M.STEPHEN

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 25.07.2019. THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

R.S.A.No.410 of 2010

JUDGMENT

A suit for declaration of title and injunction by the wife and children of the deceased owner of the property ended in a decree before the Trial Court and the First Appellate Court. A counter claim was raised by the second defendant based on Ext.B1 registered Will alleged to have been executed by the husband of first plaintiff with respect to the plaint schedule property which was concurrently dismissed by both the Courts below. Aggrieved by the said decree and judgment, the defendants came up with this appeal.

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The second defendant who is the sole legatee under Ext.B1 Will is the daughter of sister of deceased husband of first plaintiff. He committed suicide on the date of execution of Ext.B1 Will dated 22.02.1996. The propounder second defendant came to know about the Will as he was entrusted with a letter written by the testator exhibited as B2 by 7.00 p.m. on that day directing the document writer to hand over the Will to him. The letter was addressed to one Sivarama Pillai, the document writer. The Scribe was one Omana, one of the staff attached with the office of document writer. DW2 is the another attesting

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R.S.A.No.410 of 2010

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witness examined by the second defendant to prove due execution of Ext.B1 Will. The Scribe was not examined as he was passed away by that time. Both the Trial Court and the First Appellate Court found that Ext.B1 Will is not genuine as the propounder failed to dispel the suspicious circumstance attached with the due execution of the Will. Mainly four suspicious circumstances were taken up by both the Courts below. The first reason advanced and relied on by both the Courts below is that there is no statement in alleged Will that after its preparation it was read over to the testator. It is not at all necessary that there should be such a statement, recital in the Will and as such the said reason relied on by both the Courts below cannot be sustained.

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The next suspicious circumstance is regarding the

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non-mentioning of an earlier registered Will bequeathing all his assets to his wife and children. The non-mentioning of an earlier Will in the subsequent Will may not itself be sufficient to reject the same. But, when the earlier Will was registered in accordance with the law in force, the fact that it was registered and it was given to his wife and children bequeathing his entire assets to them and it was kept in tact for a long period of five years without

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R.S.A.No.410 of 2010

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expressing any intention to deviate from it and that another registered Will was executed just few moments before the commission of suicide itself loom large when there is total exclusion of his legal heirs, the wife and children from inheriting his assets. The non-mentioning of earlier registered Will in favour of his wife and children in the Will in question which was given to a distant relative, the daughter of one of his brothers in total exclusion of his wife and children that too, at the last moment of commission of suicide would itself speak volume the suspicious circumstance attached to its execution and are relevant and the propounder has to dispel all these suspicious circumstances, failure would visit with the rejection of testament claimed as the last one of deceased testator.

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Yet another suspicious circumstance also brought to the notice as to the time in which the Will in question was executed and registered. No doubt, it might be within the working hours of office of Registrar. The testator committed suicide in the evening of the very same day. Even according to the propounder, a letter was given to him exhibited as Ext.B2 by 7 p.m.. But he did not approach the scribe to get the Will as directed in Ext.B2 on that day.

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R.S.A.No.410 of 2010

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If that be so, he should explain as to what happened to the testator just after 7 p.m. and whether he was with the testator or went away from the testator and at what time he came to know the suicidal death of testator. The letter Ext.B2 not proved as the one written by the testator and no evidence adduced at least to show that it was written in his handwriting except the interested testimony of the propounder while in the box. Something fishy writ large on its face.

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Further, the description of property in Ext.B1 Will also suffers some defects which was not there in the first registered Will of the testator giving the property to his wife and children.

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The requirement under Section 63 of the Indian

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Succession Act also not spoken to by the attesting witness, DW2, who was examined to prove the compliance of requirement under Section 63 of the Indian Succession Act by discharging the mandate under Section 68 of the Indian Evidence Act. But he did not speak anything about the presence of the other attesting witness or whether the testator had seen affixture of his signature and whether that person had affixed his signature in his presence and

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in the presence of testator or whether he had obtained any

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R.S.A.No.410 of 2010

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acknowledgment from the testator regarding his signature.

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All these are lacking in the evidence tendered by DW2. There cannot be any relaxation of the requirement under Section 63 of the Indian Succession Act and failure of the propounder to prove the ingredient which would constitute Section 63 of the Indian Succession Act is fatal to him. No substantial question of law involved in the appeal. Appeal lacks merits and deserves only dismissal, but without costs.

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The appeal is dismissed. No costs.

Sd/-

P.SOMARAJAN

DMR/-

JUDGE

Sheela v. Alli

Case brief

What is this about?

What did the court decide?

Sheela v. Alli

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

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