PPK GOPALAN NAMBIAR versus PPK BALAKRISHNAN NAMBIAR AND ORS.

Citation: [1995] 2 S.C.R. 585 · Decided: 07-03-1995 · Supreme Court of India · Bench: K. RAMASWAMY, B.L. HANSARIA · Disposal: Appeal(s) allowed
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Judgment (excerpt)

PPK GOP ALAN NAMBIAR 
A 
v. 
PPK BALAKRISHNAN NAMBIAR AND ORS. 
MARCH 7, 1995 
[K. RAMASWAMY AND B.L. HANSARIA, JJ.] 
B 
Will-Duty of propounder to prove-Suspected features of will-Must 
_,, 
be real and gennane-Registered will propounded by defendant in a suit for 
f 
partition-No pleadings by plaintiff regarding invalidity of will-No evidence 
to doubt correctness of will-In the circumstances will held valid. 
c 
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In a suit for partition, the appellant-defendant propounded a 
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registered will executed by his mother under which whole of the testator's 
estate was given to the appellant. The Trial Court decreed the suit and 
rejected the validity of the will on the ground that normally testator would 
D 
not have deprived his daughters from inheritance and that suspicious 
features of the will were not removed by the evidence of appellant and an 
attestor of the will. The appellate court accepted the validity of the will 
holding that Registrar's endorsement on the will would show that the 
testator executed the will out of her free will and was in a sound state of 
deposing mind. Consequently it ordered that the properties to the extent E 
covered by the will should stand excluded from the partition decree. On 
second appeal the High Court reversed the decree of the appellate Court 
and confirmed that of the trial court. The appellant preferred an appeal 
before this court. 
/ 
Allowing the appeal and setting aside the judgment of the High F 
.). 
Court, this Court 
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HELD:l. It is the duty of the propounder of the will to prove the will 
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and to remove all the suspected features. But there must be real, germane 
and valid suspicious features and not fantasy of the doubting mind. [588-C] G 
2. In this case when the appellant had propounded the will in his 
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written statement, nothing prevented either the respondent or any of the 
contesting defendants to file a rejoinder with leave of the Court under 
Order 8 Rule 9 of the Code of Civil Procedure pleading the invalidity of 
·the will propounded by the appellant. Nothing has been stated in the H 
585 
586 
SUPREME COURT REPORTS 
[1995] 2 S.C.R. 
A pleadings. Even in the evidence when the appellant and the attestator of 
will were examined 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 examinatlon by the first respondent, no attempt was even made to 
doubt the genuineness of the will. Under these circumstances, the 
B suspicion that exdted the mind of the District Munsif is without any basis. 
The Sub~rdinate Judge had rightly considered all the circumstances and 
upheld the will. The High Court has upset the finding of the fact recorded 
by the subordinate without examining the evidence. Thus the properties 
covered under the will stand excluded from the partition. (587-G, 588~B] 
C 
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1368 of 
1978. 
. 
From the Judgment and Order dated 23.11.77 of the Kerala High 
Court in S.A. Nos. 753 and 977 of 1975. 
0 
P.S. Poti and V.B. Saharya for the Appellant. 
AS. Nambiar and P.K. Manohar for the Respondents. 
The following Order of the Court was delivered : 
The appellant is the first defendant is Suit OS No. 199/68 on the file 
E 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 1.11.55 executed by Lakshmi Almna, the mother of the appel-
lant, was not upheld and the said properties were ordered to stand ex-
cluded from partition. On second appeal, the High Court reversed the 
F decree of the appellate court in that behalf and confirmed the decree of 
the trial court in Second Appeal Nos. 753n5 and 977n5 dated 23.11.77. 
Thus this appeal by special leave. 
Sri Nambiar, learned counsel for respondent, contended that respon-
dent Nos. 2, 4 and 11 have since expired and their legal representatives 
G 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 of the 
respondents who are already on record. Therefore, there is no need to 
H bring the L.Rs. of the deceased on record or to transpose them as legal 
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P.P.K. G. NAMBIAR v. P.P.K.B.NAMBIAR 
587 
representa
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