V VELAYUDHAN NAIR Vs. KALLYANIKUTTY AMMA

JUDGEMENT

(1.) The sole defendant in O.S.109/1989 on the file of the Munsiff's Court, Manjeri was the original appellant in this Second appeal. Pending this second appeal he died and his legal representatives have been impleaded as additional appellants. The said suit instituted by the respondent herein was one for a declaration of the plaintiff's title and possession over the plaint schedule properties on the strength of Ext.A1 will executed by Velu Nair, the father of both the plaintiff and the defendant and for consequential injunction or in the alternative, for recovery of possession of the plaint schedule properties on the strength of plaintiff's title.

(2.) The trial court as per judgment and decree dated 31-1-1990 dismissed the suit holding that the plaintiff had failed to prove that Ext.A1 will dated 13-10-1977 was duly executed by the plaintiff's father deceased Velu Nair and that the plaintiff has not succeeded in dispelling the suspicious circumstances surrounding the execution and attestation of the will. On appeal by the defendant, the lower appellate court as per judgment and decree dated 23-10-1999 reversed the decree passed by the trial court and decreed the suit after holding that Ext.A1 will was duly executed by Velu Nair, the testator, and that the defendant had failed to prove that Velu Nair did not have a sound disposing state of mind. To arrive at this conclusion the lower appellate court had proceeded on the basis that since the execution of the will was virtually admitted by the defendant whose attack was that the will was got executed by practicing fraud and misrepresentation, the burden was on the defendant to prove his case. It is aggrieved by the decree passed by the lower appellate court that the defendant preferred this Second Appeal.

(3.) Notice had been issued on the following substantial questions of law formulated in the memorandum of appeal: