IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 21ST NOVEMBER 2011 / 30TH KARTHIKA 1933 RFA.No. 371 of 2006() ------------------------------ OS.4/2003 of II ADDL. DISTRICT COURT, PALAKKAD .................... APPELLANT - DEFENDENT NO.1 ---------------------------------------------- CHINNAPPA KOUNDER, S/O.PAZHANISWAMY KOUNDER, CHANDRAPURAM, WALAYAR, PUDUSSERRY AMSOM AND DESOM, PALAKKAD TALUK. BY ADV. SRI.SAJAN VARGHEESE K. SRI.LIJU. M.P SRI.M.V.BIPIN RESPONDENT(S): PLAINTIFF AND 2ND DEFENDENT --------------------------------------------------------------------------------------------------- 1. KATHIRVELU, S/O. DORESWAMY, CHANDRAPURAM, WALAYAR, PUDUSSERRY AMSOM AND DESOM, PALAKKAD TALUK. 2. CHINNATHAYI, W/O.RAMASWAMY KOUNDER, RANGASAMUDRAM, PICHANUR POST, MADUKKARAI (VIA) KOVAI, TAMIL NADU. ADV. SRI.RAJESH SIVARAMANKUTTY THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 21/11/2011 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss P.BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - R.F.A.371 of 2006-B - - - - - - - - - - - - - - - - - - - - - - - Dated this the 21st day of November, 2011 J U D G M E N T The 1st defendant in O.S.No.4 of 2003 which was a probate proceedings later converted into a suit is the appellant. 2. The parties and facts are hereinafter referred to as they are available before the trial court. 3. The facts falls within a very narrow compass. Pazhaniswamy Kounder has two children, the 1st defendant and a daughter. The 1st defendant had three sons and a daughter. The plaintiff is the son of Doraswamy one of the sons of 1st defendant. By Ext.A4 Will executed by Pazhaniswamy Kounder bequeathed his property to the plaintiff with life interest infavour of his wife. The plaintiff instituted a proceedings for the probate of the Will. 4. The defendant opposed the grant of probate. It was pointed out by him that the Will was unnatural and as it disinherited the natural heirs and also that it was registered :2: R.F.A.371 of 2006 at Chittur which was far away from the place of residence of all the parties namely Valayar and that Palakkad SRO was the nearest Registrar's Office. To avoid that office, there is no justifiable reasons. 5. These suspicious circumstances, according to the learned counsel, makes the Will bad in law. 6. On the basis of the pleadings, issues were raised and evidence were adduced. The plaintiff had examined PWs 1 to 3 and had Exts.A1 to A5 marked. The defendant examined himself as DW1 and Ext.B1 marked. 7. The lower court on an appreciation of the evidence found that the Will had been duly proved and there was no suspicious circumstances surrounding the execution of the Will. Accordingly probate was directed to be issued. The said judgment and decree are assailed in this appeal. 8. The question that arises for consideration is whether the lower court was justified in upholding the Will? 9. The learned counsel appearing for the appellant :3: R.F.A.371 of 2006 raised two points for consideration. They are:- (1) the disinheritance of the 1st defendant who is the direct son of Pazhaniswamy Kounder without any justifiable reasons especially when he had not been alloted any share in the property when the partition is took place in the family in the year 1985. & 2. The registration of Ext.A4 Will at Chittur, when the parties were residents of Valayar and the nearest Registrar's Office was SRO, Palakkad. 10. According to the learned counsel there is nothing to show that Pazhaniswamy Kounder had any disliking for the 1st defendant or that there were any justifiable reasons to prefer Chittur S.R.O. These suspicious circumstances have not been explained to the satisfaction of the of the court and the lower court was not justified in ignoring these two vital aspects and in upholding the Will. 11. Though the arguments may seen attractive at the first blush, they are without any basis. A Will is intended to interfere with the normal line of succession and it is usually :4: R.F.A.371 of 2006 executed when a preference is shown to some person other than the natural heir. The question is whether the due execution of the Will has been proved. PW3 was examined to prove the due execution of the Will. He speaks about the testamentary capacity of the testator and also about the signing of the Will by the testator in the presence of attesting witnesses and visa versa. There is nothing in his cross examination to suggest that the testator did not have a sound disposing state of mind or that he was unable to understand the nature of things done by him. The only suggestion by him is that the Will is a concocted document which is strongly denied. 12. PW2 is the person who had registered the Will at Sub Registrar's Office, Chittur. He speaks about the testator having signed in his presence and that he had also complied with all the statutory requirements. 13. The fact that the Will has been registered at Chittur does not by itself create any suspicious :5: R.F.A.371 of 2006 circumstance. May be that the testator wanted to keep the execution of the Will a secret and chose a Registrar's Office far away from his residence. Mere fact that a far away Registrar's Office has been chosen by itself cannot taken as a ground to to hold against the Will. 14. The evidence of PW2 clearly shows that the execution of the Will was admitted by the testator and all the legal formalities were complied with. One may remember here that the evidence of PW3 the attesting witness proves the due execution of the Will. Under such circumstances registration give strength to the genuineness of the Will and the lower court was perfectly justified in upholding the Will. 15. It is seen from a reading of the judgment of the lower court that the main argument advanced before the lower court was that the will may be a result of undue influence. If that be so, the burden is on the defendants to establish the said fact. There is absolute want of evidence :6: R.F.A.371 of 2006 in that regard. Under these circumstances, there are no grounds made out to interfere with the judgment and decree of the court below. This appeal is without any merits and is accordingly dismissed and there will be no order as to costs. P.BHAVADASAN, JUDGE kkj