Kerala High Court
Vattakam Purath Parambil Ananda Bhai ... vs Kanaka Bhai And Ors. on 28 January, 1994
Equivalent citations: AIR1995KER208, AIR 1995 KERALA 208, (1994) 2 CIVILCOURTC 490 (1994) 1 KER LT 474, (1994) 1 KER LT 474
JUDGMENT M.M. Pareed Pillay, J.
1. The suit for partition was dismissed by the trial Court and it has been confirmed by the lower appellate Court. Plaintiff's case is that the suit property belonged to his father and after his death it devolved on his mother, himself and the defendant, that his mother died on 17-4-1968 and that he is entitled to 1/5th share. Defendants 1 and 4 filed joint written statement admitting plaintiff's entitlement to a share in the property but also propounding Ext. B1 Will dated 14-5-1979 in favour of the 4th defendant executed by their mother. Defendants 2 and 3 filed written statement supporting the plaintiff and paid Court-fee for separate allotment.
2. Trial Court on evaluation of evidence held that Ext. B-1 Will is not genuine and all the children are entitled to the property left by mother. This finding has been confirmed by the appellate Court.
3. Main contention of the appellant is that the courts below ought to have given due importance to Ext. B1 it being a registered document and ought not have cast burden on the appellants who propounded the Will. It is contended that the Will being registered the burden is not that heavy on the appellants and the respondent (plaintiff) should have established the acceptability of the Will by cogent evidence.
4. Merely because a Will is registered its genuineness cannot be presumed. Registration of a Will does not change the onus of proof from its propounder to the challenger. Whether a Will is registered or not, it is for the propounder to establish by reliable evidence that the Will was signed by the testator, that he at the relevant time was in a sound and disposing state of mind and that he fully realised the nature and effect of the disposition and signed it on his own free will. As the burden is heavily upon the propounder to prove the Will he cannot adopt the stand that the registration of the Will itself is a circumstance to dispel any suspicious circumstance. When the genuineness of the Will is challenged the propounder has necessarily to substantiate his case regarding its genuineness even in a case where it is registered. At best registration of a Will though not required by law is only a piece of evidence of the execution. But it cannot have greater sanctity.
Both the courts below, on appraisal of evidence, held that Ext. B1 Will is not genuine. That being a finding of fact this Court cannot interfere in the Second Appeal. The appeal is dismissed. No costs.