KUNJULEKSHMI Vs. RAMAKRISHNAN

JUDGEMENT

(1.) The plaintiff in a suit for partition is the appellant. The Trial Court in granting a preliminary decree has disallowed the plaintiff's claim for share in items 1, 2, 5, 6, 8 and 22 of the plaint schedule upholding the defendants' contention that these items had been bequeathed by the plaintiff's mother under Ext. D11 will dated 18-1-1966. The appeal preferred by the plaintiff was unsuccessful, hence the second appeal.

(2.) The only question that now falls for consideration is whether Ext. D11 is a genuine will duly executed by the plaintiff's mother Gouri. Gouri died on 16-9-1966. The plaintiff and the defendants 1 to 4 are the children of Gouri. Defendants 5 to 12 are her grand children. These grand children are the beneficiaries under the will. Gouri had absolute right over 3 acres 45 cents of property and equity of redemption over another 1 acre and 43 cents. The property dealt with under Ext. D11 consists of 65 cents out of the 3 acres 45 cents and 87 cents out of the 1 acre 43 cents. The items 1 and 2,5,6. 8 and 22 are thus included in the will in the schedules A to D thereof. The defendants 5 to 7, the children of the 2nd defendant are given the A schedule items; defendants 8 to 10 the children of the 3rd defendant are given the B schedule items; the 11th defendant the son of the 4th defendant is given the item in C schedule and the 12th defendant the daughter of the plaintiff is given the D schedule items. The 1st defendant is given the life interest in the A schedule properties. The Trial Court has found that Gouri had full testamentary capacity at the time of the impugned will and the bequest is not unconscionable or unreasonable. These findings have not been successfully assailed either before the lower appellate court or this Court.

(3.) The learned counsel for the appellant relying on Purnima Debi v. Khagendra Narayan ( AIR 1962 SC 567 ) wherein the decision in H Venkatachala Iyengar v. B. N. Thimmajamma ( AIR 1959 SC 443 ) has been followed, submitted that the onus of proof of execution and attestation is on the propounder of the will and if there are any suspicious circumstances it is part of the onus of the propounder to remove those suspicions. It is argued that the contesting defendants have not discharged that onus and that neither execution nor attestation of Ext. Dl1 has been proved in accordance with law. The contention is that the testator was an illiterate aged woman. The testament purports to bear the signature as well as the thumb impressions of the executant in each page and the signature is in the form of strokes, that the manner of writing gives the impression that the will had been fabricated and therefore in the absence of credible evidence regarding the execution of the will no relief could be granted on the basis of Ext. D11. The courts below have concurrently found that the will is genuine. The testator Gouri, though illiterate and aged, was active and healthy. Ext. P7 reveals that she instituted a suit in 1965, appeared before court and gave evidence in support of her claim on 22-2-1966. She must have been therefore in good health and of sound disposing mind, when the will was executed in January 18,1966. It cannot be said that there are circumstances which arouse the suspicion of the court that the will does not express the mind of the testator, on the evidence in the case. It is therefore to be considered whether the execution of the will is proved as required under law.