In suspicious circumstances relating to Will, validity remains with the proponent to remove them

Yugashree | School of Law Sastra University,Thanjavur | 15 March 2020

Johnson and others Vs Annie and other (I.A-2/2019) (OS 663/2008)

 Facts of the Case:

1. Kochouseph, the predecessor of the parties, died at the age of 81 on 29.05.2004, leaving two male and two female issues with his wife (widow).The issue before the court of Iranjalakuda was with regard to partition of properties left by Kochouseph. Two daughters of Kochouseph challenged the execution of will (Ext-B1) by stating that the will is not a genuine one and while enquiring about that prior to this will (Ext-B5) another one was made by the deceased bequeathing suit items in favor of two sons only and it was cancelled and with slight modification Ext-B1 was made.
2. Two daughters contended that on the alleged date of execution of Ext-B1 the deceased was completely dependent on others for everything due to illness and he also had a stroke as a result of he was partly paralyzed. Two sons and their mother filed written statement resisting the claim and stated that both the wills were executed by deceased out of his testamentary disposition. They admitted that deceased had mild stroke before his death but he was healthy 10 days prior to his death.         
3. The cancellation of 1^st will was with regard to disposition of properties between sons and since in two wills mother has been given life estate and provision for giving 2 daughters Rs.10,000 was also mentioned. Two sons stated that sufficient gold and money has been given at the time of the marriage of two daughters concisely disinherited them. After considering several factors the court of Irinjalakuda, Advanced age of the deceased is taken as a circumstance to doubt the soundness of his mind and decided that the daughters are entitled for property as co owners for 4/12^th. 
4. The decision is challenged by sons and had been moved to High court of Kerala, Ernakulum. The question arise with regard to this in 1^st appeal is genuineness of the will made by the deceased. Two sons and mother (widow) before HC filed Interlocutory application for admission of additional evidence in that case. The burden to prove the will is with appellants^[1]. If there are suspicious circumstances concerning the validity of Will, the responsibility remains on the propounder to remove them and explain the circumstances^[2]. There is enough evidence to prove that the wills were signed attested by testator and witnesses^[3] and the court (HC) is also satisfied with it.
5. The doctor who treated the testator stated before the court, the patient was not capable enough to take an independent decision on his free mind. Ext B1 & B5 wills being registered should be deemed to have the legal presumption of due execution unless surrounding circumstances casting doubt on the mental competence of the executants could be shown^[4]. The 2 daughters argued that the bill was bad for improper execution and there is no valid executing by citing paragraph 5 of Janardhanan v. Jayachandran and Others [2019 (2) KHC 608].
6. A person attesting the will must have prior acquaintance with the Testator, only then the person will be qualified as attester^[5] and in this will two circumstances can be taken one with regard to prior acquaintance which is present in this will however the witnesses of the will having prior knowledge of the testator has not been produced before the court which the court felt to be suspicious. The court disapproved the view of Janardhanan’s case as it is an overstatement of law without any legal basis.
7. Court is of the view that if the testator is really affected by severe stroke and unable to move how he could have executer Ext-B4 will and few other circumstances made the court to believe that testator is in a mentality to dispose off his property after he had a mild stroke. The conduct of Kochouseph revealed through his evidence shows that the testator was in a position to act on his own free will and implement his own decision.

       Judgement:

1. High Court of Kerala stated that the error committed by the court below appears that it has decided it on the basis of assumption without any cogent evidences believed that the testator has bedridden after the stroke and  it find  its way difficult to agree this view of the court below in its circumstances
2. The court stated”Inequitable distribution of assets among the heirs or exclusion of any particular descendant from the assets of the testator cannot always be regarded as a circumstance sufficient to arouse suspicion in the matter of execution of Will.” And set aside the impugned judgement of principal sub court of Irinjalakkuda.                        

^[1] Section 61 of the Indian Succesion  Act.

^[2] H.Venkatachala Iyengar v. B.N.Thimmajamma & Others [AIR 1959 SC 443]

^[3] Section 63(C) of Indian Succession act.

^[4] Varghese v. Oommen [1994 (2) KLT 620]

^[5] Section 63 of the Indian Succession Act