The Kerala High Court ruled that the onus is on the Propounder To Remove Suspicious Circumstances.
The Senior Counsel for the first defendant and legal representatives of the second defendant contended that the crucial question which ought to have been considered by the lower court in the case was the question as to whether Ext.B6 will was duly proved by its propounders, and the lower court has not considered the said question at all.
The counsel for the plaintiff in the suit did not make any submission as to the proof of Ext.B6 will. The attempt of the counsel, however, was to establish that the execution of Ext.B6 will be shrouded by suspicious circumstances.
The division bench of Justice P.B.Suresh Kumar and Justice C.S.Sudha noted that prior to the institution of the suit, the plaintiff had issued notice to defendants demanding partition of the suit properties. There was no reply whatsoever to the said notice. If, as a matter of fact, a will executed by Thankappan in respect of the properties regarding which demand was made for partition by the plaintiff was in existence, there was absolutely no reason why the said fact could not have been informed to the plaintiff on receipt of the notice.
The court said that in the additional written statement filed by the defendants, it was explained by the defendants that the plaintiff was included as a party to the document as insisted by the purchasers of the property. The defendants have not given any evidence, not even formal to substantiate the said stand. Even otherwise, in the light of the peculiar facts and circumstances of the case, the said explanation does not appear to be convincing.
The court while dismissing the appeal said that it did not find any reason to interfere with the finding rendered by the lower court that Ext.B6 will is not a genuine one.
Case title: Kousalya and Ors. v/s Leena and Ors.
Citation: RFA NO. 417 OF 2009