Justice Sathish Ninan, Justice P. Krishna Kumar, Kerala High Court
Kerala High Court: If Attesting Witnesses Are Dead, Will Can Be Proved By Establishing That Signatures Of Executant & Witness Are In Their Handwritings
|The Kerala High Court dismissed an Appeal preferred against the Judgment of the Trial Court which decreed a Partition Suit in part, excluding the residential plot.
The Kerala High Court held that if the propounder succeeds in proving that the attesting witnesses are dead, the Will can be proved by establishing that the signatures of the executant and witness are in their handwritings.
The Court held thus in an Appeal preferred against the Judgment of the Trial Court which decreed a Partition Suit in part, excluding the residential plot.
A Division Bench comprising Justice Sathish Ninan and Justice P. Krishna Kumar observed, “… when no attesting witness can be found, it must be proved that the attestation by at least one attesting witness is in his handwriting and that the signature of the person executing the document is in that person’s handwriting. Reading Sections 68 and 69 of the Evidence Act together, it is clear that if the propounder succeeds in proving that the attesting witnesses are dead, the Will can be proved by establishing that the signature of the executant and the attestation by at least one witness are in their respective handwritings.”
The Bench said that a witness cited to prove a Will under Section 69 of the Indian Evidence Act, 1872 (IEA) need not necessarily be a person who had seen the executant and attesting witnesses affixing their signatures and it is sufficient to prove that the signatures were in the handwriting of the respective persons.
Senior Advocate R. Lakshmi Narayan appeared on behalf of the Appellant while Advocates K.C. Eldo and Nirmal S. appeared on behalf of the Respondents.
Brief Facts
The Appellant/Plaintiff filed a Suit for partition of two items of properties against her brother and the children of deceased siblings. The first Defendant i.e., the Plaintiff’s eldest brother, contested the Suit, claiming that one of the properties belonged to him under a Will executed by their mother. At the time of her death, their mother had left behind a total extent of 171.25 cents of wetland. Accepting the said Defendant’s contentions, the Trial Court decreed the Suit in part, excluding the said residential plot. Challenging this, the Plaintiff was before the High Court.
Reasoning
The High Court in view of the above facts, noted, “It is settled law that the role of the court, while considering the question whether there are suspicious circumstances related to the execution of the Will, is to ascertain whether the evidence on record satisfies its conscience to see that the instrument propounded as the last Will of the deceased is a product of a free and sound disposing mind of the testator. A Will is generally executed to alter the mode of succession.”
The Court was of the view that the first Defendant has successfully proved the due execution and registration of the Will.
“The evidence on record, along with the circumstances arising therefrom, compels us to conclude that Ext. B2 Will is genuine, and that it was duly executed by the late Bhavani. The trial court has extensively dealt with the entire evidence on record. We have re appreciated the evidence and find no material to differ from the conclusions arrived at by the trial court. There is no reason to interfere with the impugned judgment”, it added.
Accordingly, the High Court dismissed the Appeal and affirmed the impugned Judgment.
Cause Title- Dr. K.R. Leena Devi v. K.R. Rajaram & Ors. (Neutral Citation: 2025:KER:36448)
Appearance:
Appellant: Senior Advocate R. Lakshmi Narayan and Advocate R. Ranjanie.
Respondents: Advocates K.C. Eldo, Nirmal S., Veena Hari, S. Bijilal, Almajitha Fathima, and Hima Joseph.