SREEDHARAN KANAKKAPPILLA Vs. SREEDHARAN NAMBEESAN

JUDGEMENT

(1.) The plaintiffs, three in number, plaintiffs 2 and 3 being minors, sued as the heirs on intestacy of their deceased father, Vishnu Nambeesan by name, for the recovery of possession of twelve items of immovable properties, from the first defendant, their fathers brother, and for other reliefs. In opposing the suit, the first defendant set up title to the properties by virtue of a will left by his brother. The District Judge of North Malabar, negativing the plaintiffs contentions, held the will to be valid and genuine, and dismissed the suit. The first plaintiff, on his behalf, and as the next friend of plaintiffs 2 and 3 has preferred this appeal.

(2.) Vishnu Nambeesan was a follower of Marumakkathayam law, and was the karnavan of the tavazhi, which consisted of himself, the first defendant, his sister the second defendant, his nephew the third defendant and others. For some time before his death, which took place on December 9, 1947, he had been suffering from diabetes. He lost his wife, the plaintiffs mother, about six months before his death. The plaintiffs were minors and were living with him. Apparently, as if to make some provision for the plaintiffs, he took an assignment, Ext. B4, for their benefit on August 2, 1947, on tenancy rights in about nine acres of land. Later, on September 10, 1947, he made a gift to the plaintiffs of about twenty-eight acres of land, over which he had similar rights, by deed Ext. B3. On November 20, 1947, he was said to have made a disposition of all his assets in favour of the 1st defendant by will, Ext. B1, which was registered seven days later, on presentation by Sankaran Nambiar, who was his karyasthan, and also the holder of his power-of-attorney evidenced by Ext. B6 dated March 13, 1946. The sole controversy in this appeal relates to the truth and the validity of Ext. B1. In this, defendants 2 and 3 supported the 1st defendant; but they denied the exclusive title of Vishnu Nambeesan to items 8 to 10 and 12 and set up special rights to be reserved to them in item 9. Counsel agreed before us, that the dispute as to the title to items 8 to 10 and 12 need not be decided, and we accordingly leave it open; but the finding of the learned District Judge on the special rights claimed in item 9 was not impeached.

(3.) It is the duty of the party propounding a will, to prove the due execution of it. Due execution in relation to a will has three aspects, first, that it was signed by the testator, second, that the testator was of sound disposing mind at the time, and third, that he understood the effect of the dispositions made. As observed by the Supreme Court in H. Venkatachala v. B. N. Thimmajamma, AIR 1959 S. C 443: ordinarily, when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testators mind and his signature as required by law, courts would be justified in making a finding in favour of the propounder......... If there are any suspicious circumstances surrounding the execution of the will, the propounder must remove the said suspicions from the mind of the court... ............. The evidence adduced has to be viewed in the light of these principles.