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P.P.K Gopalan Nambiar v. P.P.K Balakrishnan Nambiar And Others
Factual and Procedural Background
The litigation originated as OS No. 199 of 1968 before the District Munsif, Payyoli, seeking partition of family properties. The first defendant (now appellant) relied on a registered will dated 1-11-1955 (Ex. B-12) executed by his mother, Lakshmi Amma, to exclude certain properties from partition. The District Munsif rejected the will and decreed partition of the entire estate. On first appeal, the Subordinate Judge accepted the will and directed that the properties covered by Ex. B-12 be excluded. In second appeal, the High Court reversed the Subordinate Judge and restored the trial court decree, holding the will suspicious. The present appeal was brought to the Supreme Court by special leave. During pendency, Respondents 2, 4 and 11 died after having sold their interests to other respondents.
Legal Issues Presented
- Whether the appeal abated upon the death of Respondents 2, 4 and 11, given that their legal representatives were not formally substituted (Order 22 Rule 10 CPC).
- Whether the registered will dated 1-11-1955 (Ex. B-12) executed by Lakshmi Amma was valid or vitiated by suspicious circumstances.
Arguments of the Parties
Respondent's Arguments
- The appeal had abated because Respondents 2, 4 and 11 died and no legal representatives were brought on record.
- The will was surrounded by suspicious circumstances, principally that a mother would normally not disinherit her daughters in favour of a son.
Appellant's Arguments
- Order 22 Rule 10 CPC automatically transfers the deceased respondents’ interests to the transferee-respondents already on record; hence no formal substitution was required.
- The will is a registered document; the Registrar’s endorsement confirms that the testatrix was of sound disposing mind and acted of her free will.
- No pleadings or cross-examination were directed against the validity of the will, and no evidence of undue pressure or lack of capacity was produced.
Table of Precedents Cited
No precedents were cited in the provided opinion.
Court's Reasoning and Analysis
On Abatement: Because Respondents 2, 4 and 11 had, prior to their deaths, conveyed their shares by registered sale deeds to other respondents, their interests devolved by transfer under Order 22 Rule 10 CPC. The transferee-respondents were already parties, making formal substitution unnecessary; therefore, the appeal did not abate.
On Validity of the Will (Ex. B-12):
- The will was executed in 1955 and the testatrix lived until 1963, indicating absence of imminent death-bed pressure.
- Registration carries an official endorsement that the testatrix was in a sound disposing state of mind and acted voluntarily, reducing potential suspicion.
- No pleadings challenging the will were filed; neither the respondents nor other defendants sought leave under Order 8 Rule 9 CPC to contest it.
- During evidence, the appellant (DW-1) and an attesting witness (DW-2) were examined; cross-examination did not address coercion or capacity, further undermining claims of suspicion.
- The District Munsif’s suspicions were deemed “picked from his hat” without factual foundation. Conversely, the Subordinate Judge assessed the evidence in detail and found the will proved. The High Court erred by overturning that factual finding without itself analysing the record, relying instead on abstract legal propositions.
- The Supreme Court reiterated that while a propounder bears the burden of dispelling genuine suspicion, such suspicion must arise from material on record and not the “fantasy of a doubting mind.”
Holding and Implications
Holding: The Supreme Court set aside the judgments of the High Court and the District Munsif and restored the decree of the Subordinate Judge, thereby confirming the validity of Ex. B-12 and excluding the properties covered by the will from partition. The appeal was allowed with no order as to costs.
Implications: The decision conclusively vests the disputed properties in the appellant, removes them from the partition suit, and clarifies that mere conjecture cannot substitute for evidence when assessing suspicious circumstances surrounding a will. The Court did not articulate any broader doctrinal shift; its impact is confined to the parties and reinforces existing principles on proof of wills and procedural abatement.
Order
1. The appellant is the first defendant in suit OS No. 199 of 1968 on the file of the Court of District Munsif, Payyoli. The trial court decreed the suit. On appeal, the decree, to the extent of the property covered under Ex. B-12, a will dated 1-11-1955 executed by Lakshmi Amma, the mother of the appellant, was not upheld and the said properties were ordered to stand excluded from partition. On second appeal, the High Court reversed the decree of the appellate court in that behalf and confirmed the decree of the trial court in Second Appeals Nos. 753 of 1975 and 977 of 1975 dated 23-11-1977. Thus this appeal by special leave.
2. Shri Nambiar, learned counsel for the respondent, contended that Respondents 2, 4 and 11 have since expired and their legal representatives having not been substituted, the appeal stood abated. We find no force. Admittedly, before their deaths, they sold their respective shares by registered sale deeds in favour of other respondents. So, by operation of Order 22, Rule 10 CPC, their respective interest devolved by transfer on the respondents who are already on record. Therefore, there is no need to bring the LRs of the deceased on record or to transpose them as legal representatives.
3. The real question with which we are concerned in this appeal is with regard to the validity of the will Ex. B-12. Admittedly, Lakshmi Amma had her share under a maintenance arrangement, Ex. A-2 dated 17-12-1941, under which Schedule A property was given to her and two sons, namely, the appellant and one Kunjappan Nambiar, who predeceased his mother Lakshmi Amma. In the written statement, the appellant had specifically propounded the registered will executed by his mother, Ex. B-12. The trial court, as pointed out by the High Court, saw some suspicious features. First, in normal circumstances mother would not have deprived the daughters on her demise to inherit her estate; and secondly, the will, though a registered one, suspicious features created in the case were not removed even by the evidence of DWs 1 and 2, there being enormous benefit under the will and no proof of the signature, nor proper proof of thumb impression of DW 2.
4. On appeal, the Subordinate Judge has given various reasons to accept the validity of the will. One of the reasons is that it is a registered will and the endorsement by the Registrar would show that the testator was in a sound disposing state of mind and that it was executed out of her free will and that, therefore, the discrepancy in the evidence of DW 2, an attestor does not vitiate the validity of the will. On appeal, the learned Single Judge without going into the evidence, has stated in one sentence that he agrees with the reasoning of the trial court and does not agree with the reasoning of the appellate court. We are at a loss to appreciate the view taken by the learned Judge. The High Court also stated that the whole of the estate given to the son under the will would itself generate suspicious circumstance. It is difficult to accept the reasoning of the learned Judge. Admittedly, the will was executed and registered on 1-11-1955 and she died 8 years thereafter in the year 1963. When the appellant had propounded the will in his written statement, nothing prevented either the respondent or any of the contesting defendants to file a rejoinder i.e additional written statement with leave of the court under Order 8, Rule 9 pleading the invalidity of the will propounded by the appellant. Nothing has been stated in the pleadings. Even in the evidence when the appellant was examined as DW 1 and his attestor as DW 2, nothing was stated with regard to the alleged pressure said to have been brought about by the appellant to execute the will. In the cross-examination by the first respondent, no attempt was even made to doubt the correctness of the will.
5. Under these circumstances, the suspicion which excited the mind of the District Munsif is without any basis and he picked them from his hat without fact-foundation. The Subordinate Judge had rightly considered all the circumstances and upheld the will. The High Court, without examining the evidence, by merely extracting legal position set out by various decisions of this Court has upset the finding of the fact recorded by the Subordinate Judge in one sentence. It is trite that it is the duty of the propounder of the will to prove the will and to remove all the suspected features. But there must be real, germane and valid suspicious features and not fantasy of the doubting mind.
6. The judgments of the High Court and District Munsif, therefore, stand set aside and that of the Subordinate Judge stands confirmed. So, the properties covered under Ex. B-12 stand excluded from the partition.
7. The appeal is accordingly allowed. No costs.
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