VIJAYAKUMAR KAMMATH Vs. JAYAKUMAR KAMMATH

JUDGEMENT

(1.) The first defendant in a suit for declaration and mandatory injunction is the appellant. He is the twin brother of the first respondent. It was stated that their father had 6.448 cents of property with buildings situated thereon. Out of that property, 1.448 cents was already sold to one of his sons. The total extent available with the father was 5 cents with buildings thereon. The father executed Ext. X2 Will on 4.8.1993. It is a registered Will. Evidence was given by P.W. 2, one of the attesting witnesses to prove the due execution and attestation of the Will. The Will was written up in English. The appellant contended that it was concocted by the first respondent. But the evidence to that effect is that the testator know English as well. The courts below have found that the evidence regarding execution and attestation of the Will is acceptable. Learned counsel for the appellant would submit that the evidence given by P.W. 2, who claimed to have attested the Will cannot be accepted at all since he was actually a person who had close association with P.W. 1 (the beneficiary of the Will) and so, his evidence should have been rejected by the courts below. The fact that P.W. 2 had close relation with P.W. 1 is not a reason to say that his evidence should be rejected. Though P.W. 2 was cross examined in extenso the courts below did not find anything wrong in accepting his evidence.

(2.) It was also pointed out that though one of the other legal heirs of the deceased testator had sent notice for partition, the plaintiff sent reply denying partition pointing out the existence of the registered Will but the appellant alone contended that Ext. X2 is not a genuine Will. The fact that other legal heirs did not come forward to question the validity of the Will may not be a reason to say that the Will is a genuine one, but on appreciation of evidence the courts below have accepted the evidence and held that there are no suspicious circumstances surrounding the execution of the Will. As per the Will, the daughters were to be given only amount. It is argued that there are so many circumstances which would show that the testator had every reason not to bequest any movable or immovable property to the appellant. On the other hand, there is evidence to hold that the first respondent and his family were looking after the aged father and that must precisely be the reason which persuaded the deceased to bequest the property in favour of the respondent alone.

(3.) The decision of this Court in Velayudhan Nair v. Kalliyanikutty Amma, 2006 1 KerLT 884 was relied upon by the learned counsel for the respondents in support of his contention that the burden is on the party who assails the Will on the ground of fraud or misrepresentation to substantiate the same and therefore, when the Will is attacked on the allegation of undue influence, the onus is on the appellant to prove the grounds so alleged by him. The primary burden is always on the propounder of the Will to prove the execution and attestation of the Will and that it is not surrounded by suspicious circumstances. Learned counsel for the first respondent would submit that the evidence on record would show why the appellant was not given any share in the property. It is also pointed out that the total extent of the property is only 5 cents with buildings thereon.