The Kerala High Court allowed an appeal pertaining to a partition suit where the execution of the will was questioned and held that if there is a mala fide intention on the part of the attesting witnesses to extend help to the objectors of the document, the propounder is permitted to resort to Section 70 of the Bharatiya Sakshya Adhiniyam, 2023 for other evidence for the proof of execution of the document.

The additional defendants, who are the legal heirs of the original defendant, approached the High Court.

The Single Bench of Justice M.A. Abdul Hakhim said, “Strict compliance of Section 63(c) of the Indian Succession Act is mandatory to prove a Will. It should not be diluted by resorting to Section 70 of the BSA. If the benefit under Section 70 of the BSA is extended in all cases where the execution of the will is not proved by the evidence of the attesting witness, the very purpose for which Section 63(c) of the Indian Succession Act is enacted would be defeated. When the evidence of the attesting witness is deficient to meet the requirements under Section 63(c), it is for the Court to assess the evidence of the attesting witness and come to a conclusion that there is no malafide intention on the part of the attesting witnesses purposefully to help the objectors of the document.”

"If the Court finds that there is malafide intention on the part of the attesting witnesses purposefully to extend help to the objectors of the document, such evidence of the attesting witnesses is to be treated as a case of denial of execution of the document, and the propounder is to be permitted to resort to the aid of Section 70 for other evidence for the proof of execution of the document", it added.

Advocate M Narendra Kumar represented the Appellant while Advocate Varghese Prem represented the Respondent.

Factual Background

The plaintiff and the first defendant are the children of one Ammalu Amma. The plaintiff issued a Notice to the first defendant demanding partition. The first defendant sent a Reply stating that Ammalu Amma had executed the Will bequeathing the plaint schedule property in favour of the first defendant. Claiming that Ammalu Amma was not in a proper state of mind to make any such disposition due to her old age, the plaintiffs contended that the plaint schedule was liable to be partitioned, allotting a half share to the plaintiff.

It was the defendant’s case that Ammalu Amma had executed the registered Will in favour of the first defendant, and hence, the property was not available for partition. On the death of the first defendant, during the pendency of the appeal, the additional defendants were impleaded as her legal representatives. The Trial Court decreed the suit, passing a Preliminary Decree for partition allowing the plaintiff to get partition and separate possession of one-half share of the plaint schedule property. The defendants’ appeal was dismissed. Aggrieved thereby, the appellants approached the High Court.

Reasoning

The Bench explained, “It is well settled that the registration of the Will will not be a proof for the execution of the Will and will not exclude satisfaction of the mandatory requirements of proof of Will as required under Section 63(c) of the Indian Succession Act read with S.68 of the Evidence Act. Both the Courts have concurrently found that the evidence of both the attesting witnesses are not sufficient to prove the execution of Ext.B2 Will. There is no reason or ground to take a different view.”

Referring to Section 70 of the BSA, the Bench held that it attracts only if the attesting witness denies or does not recollect the execution of the documents. Further referring to a catena of judgments, the Bench said, “When one of the attesting witnesses is examined, and he denies or does not recollect the execution of the document, the second attesting witness is to be examined if he is alive and capable of giving evidence. If the second attesting witness also denies or does not recollect the execution of the document, the propounder can resort to the aid of Section 70 of the BSA. If the attesting witness deposes that he has seen the testator signing the document, but his evidence is deficient to prove compliance with Section 63(c) of the Indian Succession Act, such deficiency could not be filled up by resorting to Section 70 of the BSA. It is for the court to decide whether it is a case of denial or deficiency of evidence, weighing the evidence of attesting witnesses. If the attesting witnesses does not deny the execution, but purposefully give deficient evidence in order to extend undue help to the parties who challenge the document either under their influence or otherwise, the Court is not powerless in such situation.”

Coming to the facts of the case, the Bench noted that given the denial of execution of the Will by the second and third defendants, the defendants were entitled to seek the benefit of Section 70 of the BSA to prove the Will by other evidence. “Merely because DW1 is a beneficiary of the Will, it could not be said that his evidence is to be discarded. If the evidence of DW1 is quite natural and reliable, the Court is fully justified in relying on the evidence of DW1 under Section 70 of the BSA”, it added.

The plaint schedule property was transferred in favour of Ammalu Amma by the plaintiff as per Ext.B5 about three months before the execution of the Will. The Bench was of the view that if Ammalu Amma did not have a sound mind, the plaintiff would not have executed Ext.B5 in her favour. It was also held that the plaintiff, in all probability, participated in the preparation of the Will as deposed by the first defendant.

It was thus held by the Bench that the plaint schedule property which belonged to Ammalu Amma was not available for partition between the plaintiff and the defendants as Ammalu Amma had executed the Will with respect to the plaint schedule property in favour of the first defendant and, hence, on the death of Ammalu Amma the first defendant became the absolute owner of the plaint schedule property.

Thus, allowing the appeal without cost, the Bench set aside the judgment and decree passed by the Trial Court.

Cause Title: P.D. Parameswaran Pillai & Ors. v. T.N Ramachandran Nair (Neutral Citation: 2025:KER:29767)

Appearance:

Appellants: Advocates M Narendra Kumar, Advocate Laya Simon, P.B. Pradeep

Respondent: Advocate Varghese Prem

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Kerala High CourtJustice MA Abdul Hakhim

Tulip Kanth

Assistant Editor

Tulip Kanth is an Assistant Editor at Verdictum having over 5 years of experience in the field of legal journalism and editing. She extensively covers judgments of the Supreme Court, High Courts as well as Tribunals. She has previously worked with a legal publishing website where she oversaw the work of other editors and has also created updates on notifications of different Government Ministries. She holds an English Honours Degree from SGTB Khalsa College, Delhi University and has completed her LLB course with specialisation in Corporate Law from Amity University.