Holding

The propounder of a will must prove its validity and dispel any genuine suspicious features; absent real, material doubts, a registered will stands valid.

Summary

In a partition suit, the defendant (appellant) produced a registered will executed by his mother that left the entire estate to him. The trial court rejected the will, finding suspicious circumstances, while the subordinate judge upheld its validity, relying on the registrar's endorsement as proof of the testator's sound mind. The High Court reversed the subordinate judge and reinstated the trial court's decision, deeming the will invalid. On special leave, the Supreme Court held that the burden of proving a will lies on the party who propounds it and that only genuine, material suspicious features can defeat its validity. Since no real suspicious features were pleaded or proved, the Court set aside the High Court's order, confirmed the subordinate judge's finding, and excluded the properties covered by the will from the partition.

Issues considered

The burden of proof for the validity of a will and the requirement to remove all suspected features.
Whether the alleged suspicious features of the will were real, germane, and sufficient to invalidate it.
Whether the respondents could plead the invalidity of the will under Order 8 Rule 9 of the CPC after the will was propounded.

Legislation cited

Code of Civil Procedure, 1908s. Order 22 Rule 10, s. Order 8 Rule 9

Subjects

will validityburden of proofregistered willpartition suitCPC Order 8 Rule 9suspicious featurestestamentary capacity

Judgment

PPK GOP ALAN NAMBIAR A
v.
PPK BALAKRISHNAN NAMBIAR AND ORS.

MARCH 7, 1995

[K. RAMASWAMY AND B.L. HANSARIA, JJ.] B

Will-Duty of propounder to prove-Suspected features of will-Must
_,, be real and gennane-Registered will propounded by defendant in a suit for
partition-No pleadings by plaintiff regarding invalidity of will-No evidence
f to doubt correctness of will-In the circumstances will held valid. c
' In a suit for partition, the appellant-defendant propounded a
(
registered will executed by his mother under which whole of the testator's
estate was given to the appellant. The Trial Court decreed the suit and
rejected the validity of the will on the ground that normally testator would
not have deprived his daughters from inheritance and that suspicious D
features of the will were not removed by the evidence of appellant and an
attestor of the will. The appellate court accepted the validity of the will
holding that Registrar's endorsement on the will would show that the
testator executed the will out of her free will and was in a sound state of
deposing mind. Consequently it ordered that the properties to the extent E
covered by the will should stand excluded from the partition decree. On
second appeal the High Court reversed the decree of the appellate Court
and confirmed that of the trial court. The appellant preferred an appeal
before this court.

/ Allowing the appeal and setting aside the judgment of the High F
.). Court, this Court
(
HELD:l. It is the duty of the propounder of the will to prove the will
y and to remove all the suspected features. But there must be real, germane
and valid suspicious features and not fantasy of the doubting mind. [588-C]
G
2. In this case when the appellant had propounded the will in his
written statement, nothing prevented either the respondent or any of the
~
contesting defendants to file a rejoinder with leave of the Court under
Order 8 Rule 9 of the Code of Civil Procedure pleading the invalidity of
·the will propounded by the appellant. Nothing has been stated in the H
585
586 SUPREME COURT REPORTS [1995] 2 S.C.R.

A pleadings. Even in the evidence when the appellant and the attestator of
will were examined nothing was stated with regard to the alleged pressure
said to have been brought about by the appellant to execute the will. In the
cross examinatlon by the first respondent, no attempt was even made to
doubt the genuineness of the will. Under these circumstances, the
B suspicion that exdted the mind of the District Munsif is without any basis.
The Sub~rdinate Judge had rightly considered all the circumstances and
upheld the will. The High Court has upset the finding of the fact recorded
by the subordinate without examining the evidence. Thus the properties
covered under the will stand excluded from the partition. (587-G, 588~B]

C CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1368 of
1978. .
~
I
From the Judgment and Order dated 23.11.77 of the Kerala High
Court in S.A. Nos. 753 and 977 of 1975.

0 P.S. Poti and V.B. Saharya for the Appellant.

AS. Nambiar and P.K. Manohar for the Respondents.

The following Order of the Court was delivered :

The appellant is the first defendant is Suit OS No. 199/68 on the file
E of the court of District Munsif, Payyoli. The trial court decreed the suit.
On appeal, the decree, to the extent of the property covered under Ex.B-12
a will dated 1.11.55 executed by Lakshmi Almna, the mother of the appel-
lant, was not upheld and the said properties were ordered to stand ex-
cluded from partition. On second appeal, the High Court reversed the
F decree of the appellate court in that behalf and confirmed the decree of
the trial court in Second Appeal Nos. 753n5 and 977n5 dated 23.11.77.
Thus this appeal by special leave.

Sri Nambiar, learned counsel for respondent, contended that respon-
dent Nos. 2, 4 and 11 have since expired and their legal representatives
G having not been substituted, the appeal stood abated. We find no force.
Admittedly, before their deaths, they sold their respective shares by
registered sale deeds in favour of other respondents. So, by operation of
Order 22 Rule 10 CPC, their respective interest devolved by transfer of the
respondents who are already on record. Therefore, there is no need to
H bring the L.Rs. of the deceased on record or to transpose them as legal
-t
P.P.K. G. NAMBIAR v. P.P.K.B.NAMBIAR 587

representatives. A

The real question with which we are concerned in this appeal is with
regard to the validity of the will Ex.B-12. Admittedly, Lakshmi Amma had
her share under a maintenance arrangement, EX.A- 2 dated 17.12.41,
under which Schedule-A property was given to her and two sons, namely,
the appellant and one Kunjappan Nambiar, who predeceased his mother B
. Lakshmi Aroma. In the written statement, the. appellant had specifically
propo~nded the registered will executed by his mother, Ex.B-12. The trial
court, as pointed out by the High Court, saw some suspicious features.
First, in normal circumstances mother would not have deprived the
daughters on her demise to inherit her estate; and secondly, the will, C
,._' . though a registered one, suspicious features created in the case were not
\
removed even by the evidence of DW-1 and 2, these being enormous
benefit under the will and no proof of the signature, nor proper proof of
thumb impression of DW-2.
D
On appeal, the sub-ordinate Judge has given various reasons to
accept the validity of the will. One of the reasons is that it is a registered
will and the endorsement by the Registrar would show that the testator was
in a sound disposing state of mind and that it was executed out of her free
will and that, therefore, the discrepancy in the evidence of DW-2, an
attestor does not vitiate the validity of the will. On appeal, the learned E
single Judge without going into the evidence, has stated in one sentence
that he agrees with the reasoning of the trial court and does not agree with
the reasoning of the appellate court. We are at a loss to appreciate the
view taken by the learned judge. The High Court also stated that the whole
of the estate given to the son under the will would itself generate suspicious p
circumstance. It is difficult to accept the reasoning of the learned judge.
Admittedly, the will was executed and registered on 1.11.55 and she died
l, - 8 years thereafter in the year 1963. When the appellant had propounded
}
the will in his written statement, nothing prevented either the respondent
or any of the contesting defendants to ftl.e a rejoinder i.e. additional written
statement with leave of the court under Order 8 Rule 9 pleading the G
invalidity of the will propounded by the appellant. Nothing has been stated
in the pleadings. Even in the evidence when the appellant was examined
as DW-1 and his attestator was as DW-2, nothing was stated with regard
to the alleged pressure said to have been brought about by the appellant
to exe~ute the will. In the cross-examination by th~ first responde~, no H
J_ -
588 SUPREME COURT REPORTS (1995) 2 S.C.R.

A attempt was even made to doubt the correctness of the will.
Under these circumstances, the suspicion excited the mind of the
District Munsif is without any basis and he picked them from his hat
without fact-foundation. The Sub-ordinate Judge had rightly considered.all
the circumstances and upheld the will. The High Court, without examining
B the evidence, by merely extracting legal position set out by various
decisions of this court has upset the finding of the fact recorded by the
Sub-ordinate Judge in one sentence. It is trite that it is the duty of the
propounder of the will to prove the will and to remove all the suspected '
features. But there must be real, germane and valid suspicious features and
C not fantasy of the doubting mind.
The judgments of the High Court and District Munsif, therefore,
stand set aside and that of the Sub-ordinate Judge stands confirmed. So,
the properties covered under Ex.B-12 stand excluded from the partition.

D The appeal is accordingly allowed, No costs.

T.NA. Appeals allowed.