Case Note & Summary
The appeal arose from a final decree application in a partition suit. The appellant/plaintiff, son of the deceased first respondent and brother of the second respondent, filed O.S.No.68 of 2014 before VI Additional District Court, Madurai, seeking partition of his 1/3 share in the suit property. An ex parte preliminary decree was passed on 20.01.2015. Subsequently, the first respondent (mother) died on 29.04.2015. The appellant then filed I.A.No.532 of 2016 claiming that since his mother died intestate, his share enlarged to 1/2, and sought final decree by appointing advocate commissioner to divide the property into two equal shares. The second respondent opposed, claiming their mother executed a registered Will dated 02.02.2015 bequeathing her 1/3 share to him. The trial court framed the issue whether the final decree application should be allowed and, after recording evidence, partly allowed it, allotting only 1/3 share to the appellant. Aggrieved, the appellant filed the present appeal under Section 96 CPC. The central legal issue was whether the Will dated 02.02.2015 was genuine and validly executed. The appellant contended that the Will was concocted because, among other reasons, the testator was unwell and not of sound mind, the advocate for the respondent drafted the Will, the attesting witness stated he read a Tamil Will while the Will was in English, and only a certified copy was produced with claim of lost original. The respondent argued that he maintained the mother, that registration of the Will was not disputed, and that he proved due execution through the attesting witness R.W.2 and video evidence Ex.R.2 CD showing the testator's presence before the Sub Registrar. The court noted the legal principle that mere registration of a Will does not attach validity; it must be proved under Section 63 of Indian Succession Act and Section 68 of Indian Evidence Act. The court examined R.W.2's deposition, who stated that he saw the thumb impression affixed by the testator and that the Sub Registrar questioned the testator about her willingness. The court also considered Ex.R.2 CD, which showed active participation of the testator during registration, and found that the appellant did not produce any rebuttal evidence. The court held that the respondent discharged his burden of proving due execution and that the Will was valid. Consequently, the mother's 1/3 share passed to the respondent under the Will, and the appellant's share remained 1/3, not enlarged to 1/2. The court found no reason to interfere with the trial court's factual findings and dismissed the appeal, confirming the trial court's order for allotment of 1/3 share to the appellant through advocate commissioner.
Headnote
A) Civil Procedure - First Appeal - Section 96 Code of Civil Procedure, 1908 - Appeal Suit filed against judgment and decree dated 11.03.2019 in I.A.No.532 of 2016 in O.S.No.68 of 2014 on file of VI Additional District Judge, Madurai - Court considered whether trial court's partial decree allowing 1/3 share was sustainable - Held that appeal lacked merit and dismissed (Paras 1, 8-10, 13-17). B) Succession - Execution of Will - Section 63 Indian Succession Act, 1925 - Mere registration of a Will does not attach validity; it must be proved by at least one attesting witness under Section 68 Indian Evidence Act, 1872 - Attesting witness R.W.2 deposed that he saw thumb impression of testator and Sub Registrar questioned her about willingness; video Ex.R.2 CD showed active presence - Held that Will was validly executed and proved (Paras 14-17). C) Evidence - Proof of Will - Section 68 Indian Evidence Act, 1872 - Requirement of examining at least one attesting witness to prove execution - R.W.2 evidence and Ex.R.2 CD were not rebutted by appellant/plaintiff; no rebuttal evidence adduced - Held that respondent discharged burden of proving Will (Paras 16-17). D) Succession - Intestate vs Testamentary Succession - Section 63 Indian Succession Act, 1925 - Appellant claimed 1/2 share after mother died intestate but registered Will bequeathing 1/3 share to respondent was proved - Therefore appellant's share remained 1/3, not enlarged - Held trial court's order allotting 1/3 share to appellant confirmed (Paras 4-7, 13-14).
Issue of Consideration
Whether the original Will of Ex.R.1, dated 02.02.2015, was true and legally valid, thereby determining whether the appellant/plaintiff was entitled to 1/2 share or only 1/3 share in the suit property
Final Decision
Appeal dismissed; trial court's judgment and decree dated 11.03.2019 upheld; appellant/plaintiff entitled to 1/3 share in suit property; registered Will dated 02.02.2015 held valid and binding; trial court's order appointing advocate/commissioner for allotment of 1/3 share to plaintiff confirmed.
Law Points
- Mere registration of a Will does not attach validity
- proof of execution requires at least one attesting witness under Section 68 Indian Evidence Act
- Will proved by attesting witness and video evidence showing testator's presence
- no rebuttal evidence by plaintiff
- appellate court upheld trial court's factual findings
