Case Note & Summary
The litigation originated from an application for probate of an alleged will executed by Edakuda Panankandiyil Narayana Kurup, who passed away on 4 September 2002. The plaintiff, his daughter, claimed to be the sole executrix under a will dated 18 August 2002 which bequeathed a flat to her son and the remainder of the estate to herself, excluding the testator’s three sons. The defendant, one of the excluded sons, filed a caveat, alleging that the will was false, fabricated, and procured through fraud and undue influence. According to the plaint, the will was witnessed by an advocate, Mr. Kishor V. Tembe, and his wife. The defendant contended that the testator was 88 years old, illiterate, understanding only Malayalam, suffering from cancer and other ailments, and not in a sound state of mind. He asserted that the will was drafted at the behest of the plaintiff, who exerted overwhelming influence over the debilitated testator. The caveator specifically objected that the original will was neither shown to the attesting witness nor to the plaintiff during trial, and that the witness failed to identify the signatures. The defendant pointed to multiple suspicious circumstances: the testator’s advanced age and severe illness, his death soon after execution, the total exclusion of sons without compelling reason, and the plaintiff’s active role in arranging the execution and registration. The court framed three issues: validity of execution, presence of fraud or fabrication, and entitlement to relief. In evidence, the plaintiff examined herself, another son of the deceased, and the attesting witness Mr. Tembe. The defendant examined himself, another son, and a doctor from BARC Hospital. The court found that the plaintiff did not prove due execution as required by Sections 67 and 68 of the Indian Evidence Act, 1872, because the original will was not produced before the attesting witness for identification. The court also accepted the existence of suspicious circumstances that the propounder failed to remove, ruling that the will was not proved to be genuine. Consequently, the probate petition was dismissed, and the suit was decided in favor of the defendant caveator.
Headnote
A) Evidence - Proof of Will - Requisite attestation proof under Section 68 - Indian Evidence Act, 1872, Sections 67, 68 - Original will not shown to attesting witness (Mr. Kishor V. Tembe) during deposition; witness did not identify signatures of testator or attesting witnesses; plaintiff also not shown original will; court held execution not proved (Paras 13-14). B) Succession - Probate - Suspicious circumstances - Indian Succession Act, 1925 - Testator aged 88, suffering from cancer, diabetes, breathlessness, died 17 days after execution; exclusion of three sons without substantial reason; registration at residence; active role of beneficiary plaintiff raised doubts; propounder failed to dispel suspicions surrounding will's genuineness; court held will surrounded by suspicious circumstances (Paras 10, 15).
Issue of Consideration
Whether the last Will and Testament of the testator dated 18th August 2002 was validly executed; Whether the Will was obtained by fraud or was forged and fabricated; Whether the plaintiff is entitled to probate.
Final Decision
The suit was dismissed. The court found that the will was not proved to have been validly executed, and it was surrounded by suspicious circumstances. Probate was refused.
Law Points
- Proof of execution of will
- Attestation of will
- Suspicious circumstances in proof of will
- Section 67 and 68 of Indian Evidence Act
- 1872
- Propounder's burden to remove suspicion
- Validity of registered will
- Testamentary capacity
- Undue influence and fraud in execution of will
