The Kerala High Court dismissed an appeal against the dismissal of a partition suit. The court upheld the validity of a Will executed by the testator, finding it genuinely executed under Section 63(c) of the Indian Succession Act, despite the testator's illness history. Medical conditions did not impair capacity.
The appeal was dismissed; no costs awarded.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
WEDNESDAY, THE 13th DAY OF JULY 2022 / 22ND ASHADHA, 1944
RFA NO. 45 OF 2021 (E)
AGAINST THE JUDGMENT & DECREE DATED 22.12.2020 IN OS No.53/2016 OF
ADDITIONAL SUB COURT, PALAKKAD
APPELLANT/PLAINTIFF IN O.S.:
E.V.SASIDHARAN, AGED 61 YEARS, S/o LATE C.N.VALSALAN, RESIDING AT OMKAR, DURGA LANE, PUTHUR, PALAKKAD DISTRICT, PIN 678 005.
BY ADVS. P.B.KRISHNAN SRI.P.B.SUBRAMANYAN SRI.SABU GEORGE SMT.B.ANUSREE SRI.MANU VYASAN PETER SMT.MEERA P.
RESPONDENTS/DEFENDANTS IN O.S:
1 E.V.HARIHAR, AGED 54 YEARS, S/o LATE C.N.VALSALAN, NARAYANA VIHAR, DURGA LANE, PUTHUR, PALAKKAD DISTRICT, PIN 678005.
R1 TO R3 BY ADV SRI.RAJESH SIVARAMANKUTTY
THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON 13.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
RFA No.45 of 2021
2
JUDGMENT
A suit for partition was dismissed by the trial court
based on a finding that Ext.B3 Will relied on by the fourth defendant, the wife of the testator, is genuine and duly executed, against which, the plaintiff came up in appeal.
The attesting witness, DW2, had given oral evidence in tune with the mandate under Section 63(c) of the Indian Succession Act that she had witnessed affixture of signature by the testator and that she along with the other attesting witness had affixed their respective signatures in the presence of testator. Nothing was brought out to discredit her evidence during cross-examination. Further, her evidence stood supported by the oral evidence given by
the scribe, DW3. As on 17/10/2002, the testator had executed Ext.B2 settlement deed, which is not under
challenge. It is with respect to some other property. The
relevance of the said document is that it was executed on
17/10/2002 and the alleged Will is on 1/8/2003. There is
hardly ten months gap between the date on which the
RFA No.45 of 2021 3
settlement deed was executed and the date of execution of the alleged Will, Ext.B3. The mere fact that she had undergone an open heart surgery just two years prior to the execution of the alleged Will and was suffering from cancer during the relevant period, even if it is admitted, will not be a sufficient ground to reject the due execution of Ext.B3 Will, unless there is evidence to show impairment of mental capacity to the extent of making it invalid. Hence, the appeal fails, dismissed. No costs.
Sd/-
P.SOMARAJAN JUDGE
DMR/-
2 issues framed by the court
Whether the execution of the Will relied upon by the defendants is genuine and duly executed in light of the demeanor of the testator.
Whether the medical history of the testator, including open heart surgery and cancer, impairs his mental capacity to invalidate the Will.
1 provisions across 1 enactments
E.V. Sasidharan
E.V. Harihar
E.V. Sheela Subhash
E.V. Vinaya Kumar
P. Somarajan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
