Succession Act, 1925 – Will – Attesting Witness – Scribe – Validity of Will – Intestate Succession – Partition – Property Rights.
2025 KER 42170 : 2025 (6) KLR 124 : 2025 KLT OnLine 2185
High Court of Kerala; Easwaran S., J.
RSA No. 900 of 2013, 12 June 2025
Held:
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The High Court allowed the appeal, reversing the trial court and first appellate court’s findings that Ext.B1 Will was invalid due to the scribe acting as an attesting witness. The Court held that a scribe can be an attesting witness under Section 63(c) of the Indian Succession Act, 1925, provided there is intent to attest, as evidenced by the serial numbering of witnesses in Ext.B1, a registered Will. The Supreme Court decisions in Mathew Oommen v. Suseela Mathew (2006) and Savithri v. Karthyayani Amma (2007) were relied upon, rejecting the contention that Mathew Oommen was per incuriam.
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The plaintiff’s admission of the Will’s existence in prior proceedings and pleadings under Order VIII Rule 5 and Order VII Rule 1(e) of the Code of Civil Procedure, 1908, dispensed with the need for further proof under Section 68 of the Indian Evidence Act, 1872. The examination of attesting witnesses (DW2 and DW3) further discharged the defendant’s burden.
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The plaintiff’s claim that Mathew Varghese could not bequeath a 1/3rd share of his deceased wife Annamma’s 1/2 share was rejected. Under Sections 32 and 33 of the Indian Succession Act, 1925, remarriage does not divest a widower of property acquired through intestate succession. Thus, Mathew Varghese validly bequeathed his 1/3rd share over Annamma’s 1/2 share.
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The suit for partition was partially allowed, declaring that only 2/3rd of Annamma’s share was available for partition, to be divided equally among seven sharers, each entitled to a 2/21 share. The Will (Ext.B1) was upheld as the last testamentary disposition of Mathew Varghese.
Result: Appeal allowed, trial court and first appellate court judgments reversed. Preliminary decree passed for partition of 2/3rd share of Annamma’s property into seven equal shares, with costs to the appellant.
Cases Referred:
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Mathew Oommen v. Suseela Mathew [(2006) 1 SCC 519]
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Savithri v. Karthyayani Amma [(2007) 11 SCC 621]
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Dhanpat v. Sheo Ram [(2020) 16 SCC 209]
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N. Kamalam v. Ayyasamy [(2001) 7 SCC 503]
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Sundeep Kumar Bafna v. State of Maharashtra [(2014) 16 SCC 623]
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Gopinathan Nair Maheswaran Nair v. Madhavi Amma Nirmala Bai [2019 (3) KLT 484]
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Lisamma v. Saramma [2017 (2) KLT 1084]
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Thayyullathil Kunhikannan v. Thayyullathil Kalliani [AIR 1990 Kerala 226]
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Vadakkayil Gopalan v. Vadakkayil Paru [2013 (2) KHC 902]
