Statement of Facts (plaintiff)
1. The plaintiff and defendant are brothers residing in different locations. The plaintiff is a
medical professional, and the defendant has been engaged in administering the property and
business in question.
2. The plaint schedule property, measuring approximately 10 acres, is situated in Marathakkara
Village. It is bounded by a compound wall with gates on the north and south and is located
between two public roads. The property was owned by the late Mr. Francis @ Kunjiporinchu, the
plaintiff's and defendant’s father’s brother. Mr. Francis remained unmarried and passed away on
06.06.2014 at the age of 92.
3. The property includes a tile factory named "General Clay Company," which Mr. Francis
operated for over fifty years. Due to his advanced age, Mr. Francis sought assistance in managing
the factory. Although he favored the plaintiff, since he was residing at Ernakulam, he took the
help of the defendant for administering the factory.
4. Since 2008, the defendant stopped rendering accounts and allegedly appropriated the profits
from the tile factory for personal gain. He also gained possession of the title deeds and other
related documents of the property and factory.
5. On 15.03.2009, Mr. Francis executed a handwritten Will in the presence of two respectable
witnesses: Rev. Fr. Joseph Kalikassery and Mr. Colonel B.J. Akkara. The Will was deposited
with the Sub-Registrar, Thrissur. It specified that the plaint schedule property and the tile factory
would devolve solely upon the plaintiff after Mr. Francis' death. The Will also mandated
renaming the tile factory to "St. Francis Clay Company" and installing Mr. Francis’ portrait in
the factory.
6. After Mr. Francis’ demise, the plaintiff obtained and registered the Will as Document No.
290/2014 with the Sub-Registrar, Thrissur. While the plaintiff permitted the defendant to
continue managing the factory temporarily, the defendant failed to comply with the mandate of
the Will to rename the factory.
7. In February 2018, the plaintiff requested the defendant to hand over the title deeds, documents,
and accounts of the property and factory. Despite issuing a lawyer’s notice on 02.03.2018
withdrawing permission to administer the property, the defendant failed to comply. The
defendant received the notice on 19.03.2018 but neither responded nor handed over the required
documents.
8. The plaintiff claims to be the sole and legitimate owner of the property and is entitled to its
possession and administration without interference. The defendant, having no legal authority
over the property or factory, is wrongfully withholding the title deeds and documents.
9. The plaintiff seeks reliefs, including a permanent and prohibitory injunction to restrain the
defendant from interfering with the administration of the tile factory and property. He also seeks
a mandatory injunction directing the defendant to hand over all title deeds, prior documents, and
accounts, along with the costs of litigation.
10. The cause of action arose in February 2018 when the plaintiff requested the defendant to
hand over the documents, and subsequently when the lawyer’s notice was sent and ignored.
Since the plaint schedule property and the defendant’s residence fall within the jurisdiction of
this Honorable Court, the court has the authority to try the case.
Statement of Facts (Defendant)
1. The defendant categorically denies all the allegations and material averments made in the
plaint, except those specifically admitted.
2. The defendant asserts that the plaint is not maintainable either in law or on facts. The plaintiff
lacks clarity regarding the relief sought and has filed the plaint beyond the limitation period
specified under the Limitation Act. The plaint schedule property is in the possession of the
defendant, and the plaintiff has failed to include a proper prayer regarding the claimed relief.
Additionally, the documents relied upon by the plaintiff lack a proper description of the plaint
schedule property.
3. The plaint schedule property originally belonged to the late Kunjiporinchu, who acquired it in
1950. Using the property as capital, Kunjiporinchu, along with partners, started a partnership
firm called "General Clay Company." Over time, the firm was reconstituted, with the deceased
Kunjiporinchu, the defendant, and others managing its operations. The defendant’s claim to the
property arises from his role in the firm.
4. The "General Clay Company" operated on the northern side of the property, while a rubber
manufacturing company, "Akkara Rubber Company," operated on the southern side. Both
businesses were managed by Kunjiporinchu and the defendant. The defendant constructed shop
rooms on the southern boundary wall, which remain standing. All licenses, taxes, and statutory
obligations relaoted to the business were duly met by the defendant and the firm.
5. The plaintiff claims that the deceased Kunjiporinchu wrote a handwritten will on 15.03.2009
and deposited it at the Sub-Registrar Office, Thrissur. The defendant denies this claim and
alleges that the will is fabricated. The plaintiff’s assertion lacks credibility as the deceased
Kunjiporinchu executed a valid will on 11.08.2011, registered at the Sub-Registrar Office with
two witnesses, which supersedes any previous wills.
6. The defendant alleges that the plaintiff coerced the deceased Kunjiporinchu into signing the
alleged 2009 will after a cataract surgery that temporarily impaired his vision. The plaintiff’s
claims about the 2009 will are further undermined by inconsistencies in the property details and
suspicious circumstances surrounding its execution.
7. There were ongoing disputes between the plaintiff and the defendant regarding family
partitions after the death of their father in 2000. Mediation efforts failed due to the plaintiff’s
excessive demands. The plaintiff attempted to influence witnesses and family trust members to
support his claims.
8. The plaintiff has filed multiple criminal cases against the defendant, including one related to
alleged misappropriation of funds. These cases were filed with the intention of tarnishing the
defendant’s reputation and coercing him into compliance with the plaintiff’s demands.
9. The defendant emphasizes that the deceased Kunjiporinchu was a partner in the firm, and his
rights to the property were limited to his share in the partnership. The plaintiff has no legal
standing to claim the property or interfere in the firm’s affairs.
10. The defendant argues that the 2009 will is biased and forged, favoring the plaintiff
disproportionately. In contrast, the 2011 will divides the deceased's assets equally between the
sons of the plaintiff and the defendant.
11. The defendant contends that the cause of action for the suit arose on a date that is beyond the
period of limitation. The suit is, therefore, barred under the Limitation Act, and the plaintiff has
no right to seek the relief claimed.
Contentions of the Plaintiff:
The plaintiff denies the existence of any other Will and argues that Document No. 290/2014 is
the last and valid Will of Mr. Francis @ Kunjiporinchu.
The plaintiff refutes the defendant's claim that the witnesses of the alleged Will of 2011 are
unavailable or aged.
Issues
● Whether the Will dated 15 March 2009, registered as Document No. 290/2014, is genuine
and valid under the law.
● Whether the alleged Will dated 11 August 2011, claimed by the defendant and registered
as Document No. 360/2011, is genuine and valid.
● If both Wills exist, which one is the legally enforceable last Will of Mr. Francis @
Kunjiporinchu?
1. According to section 62 of Indian Succession Act,1925 a will can be revoked or altered
by the maker of it any time when he is competent to dispose of his property by will.
2. Section 70 of the Indian Succession Act of 1925 covers the revocation of unprivileged
wills or codicils. It states that an unprivileged will or codicil can be revoked in the
following by another will or codicil
3. In this case, the validity of two wills, one executed in 2009 and the other in 2011, is in
question. The legal rule clearly states that the most recent will revoke all earlier ones.
This principle has also been upheld in numerous judicial decisions.
4. In H. Venkatachala Iyengar v. B.N. Thimmajamma [AIR 1959 SC 443] it was opined:
(SCR pp. 443-45) "However, there is one important feature which distinguishes wills
from other documents. Unlike other documents the will speaks from the death of the
testator, and so, when it is propounded or produced before a court, the testator who has
already departed the world cannot say whether it is his will or not; and this aspect
naturally introduces an element of solemnity in the decision of the question as to whether
the document propounded is proved to be the last will and testament of the departed
testator
5. In the case of T.T.Joseph vs K.V.Ippunny AIR 2007 (4) KLT 853. There were two
testaments which are not inconsistent with each other, both together can be considered as
last Will of the deceased. But, the last testamentary disposition by a testator operates to
the exclusion of any previous inconsistent Wills. In such cases, earlier Will is impliedly
revoked.
6. The plaintiff contended that the will was executed in 2009, although it was registered in
2014. However, the second will was both executed and registered in 2011. The relevance
of a will is determined by its execution rather than its registration, as registration is
considered optional and does not determine the validity of the will.
7. Dhani Ram vs Shiv Singh on 6 October, 2023: Supreme Court has said that mere
registration of a Will would not be sufficient to prove its validity, as its lawful execution
necessarily has to be proved in accordance with Section 68 of the Indian Evidence Act,
1872 and Section 63 of the Indian Succession Act, 1925.
8. In the latest will, Mr. Kunjiporinchu did not mention any earlier will. This omission can
be inferred to suggest that he was unaware of the existence of the previous will, raising
suspicion that the earlier will may have been forged. The absence of any reference to the
prior will in the subsequent document could indicate that the testator intended the later
will to stand as the final expression of their wishes, thereby revoking the earlier one.
9. In the case of Panakkal Iyyapan and Another v. Elachar Chakkunni (1916), A subsequent
will that comprehensively disposes of all the testator’s properties will generally be
interpreted as revoking earlier wills, even without an explicit revocation clause, if the two
wills are inconsistent
In a Allahabad High Court case ,Pramila Tiwari vs Anil Kumar Mishra And 4 Others on 10 May,
2024 : There could equally be a case where a person in his last days of life may change his mind
and may decide a different distribution of his assets and properties from what he had decided
sometime ago. A Will or wish that operated last in the mind of the testator is definitely to prevail
and that is why the rule is that the last Will prevails. So in the event non registration of Will is
rendered void then a person executing a 'Will' will be denied of his right to have his/her "wish"
or desire changed. His will to subject his property to be succeeded as per his wish would be
denied to him. To deny a person the right to change his Will by an unregistered document in his
last days would not only be inhuman but would be an arbitrary denial of his fundamental right to
create a Will of his assets and properties. There could be a condition where a person wishes in
the last days of his/her life to distribute his/her property as per his last desire or wish which
might be very different from the last registered Will. This, according to us, would never be the
intention of the legislation.
In the case of MEENA PRADHAN & ORS. VKAMLA PRADHAN & ANR. 2023(SC) 809,
Relying on H. Venkatachala Iyengar v. B.N. Thimmajamma, 1959 Supp (1) SCR 426 (3Judge
Bench), Bhagwan Kaur v. Kartar Kaur, (1994) 5 SCC 135 (3Judge Bench), Janki Narayan Bhoir
v. Narayan Namdeo Kadam, (2003) 2 SCC 91(2Judge Bench) Yumnam Ongbi Tampha Ibema
Devi v. Yumnam Joykumar Singh, (2009) 4 SCC 780 (3Judge Bench) and Shivakumar v.
Sharanabasappa, (2021) 11 SCC 277 (3Judge Bench), we can deduce/infer the following
principles required for proving the validity and execution of the Will:
i. The court has to consider two aspects: firstly, that the Will is executed by the testator, and
secondly, that it was the last Will executed by him;
ii. It is not required to be proved with mathematical accuracy, but the test of satisfaction of the
prudent mind has to be applied.
iii. A Will is required to fulfil all the formalities required under Section 63 of the Succession Act,
that is to say:
(a) The testator shall sign or affix his mark to the Will or it shall be signed by some other person
in his presence and by his direction and the said signature or affixation shall show that it was
intended to give effect to the writing as a Will;
(b) It is mandatory to get it attested by two or more witnesses, though no particular form of
attestation is necessary;
(c) Each of the attesting witnesses must have seen the testator sign or affix his mark to the Will
or has seen some other person sign the Will, in the presence and by 6CIVIL APPEAL NO.3351
OF 2014 the direction of the testator, or has received from the testator a personal
acknowledgment of such signatures;
(d) Each of the attesting witnesses shall sign the Will in the presence of the testator, however, the
presence of all witnesses at the same time is not required;
iv. For the purpose of proving the execution of the Will, at least one of the attesting witnesses,
who is alive, subject to the process of court, and capable of giving evidence, shall be examined;
v. The attesting witness should speak not only about the testator’s signatures but also that each of
the witnesses had signed the will in the presence of the testator; vi. If one attesting witness can
prove the execution of the Will, the examination of other attesting witnesses can be dispensed
with;
vii. Where one attesting witness examined to prove the Will fails to prove its due execution, then
the other available attesting witness has to be called to supplement his evidence;
7 viii. Whenever there exists any suspicion as to the execution of the Will, it is the responsibility
of the propounder to remove all legitimate suspicions before it can be accepted as the testator's
last Will. In such cases, the initial onus on the propounder becomes heavier. ix. The test of
judicial conscience has been evolved for dealing with those cases where the execution of the Will
is surrounded by suspicious circumstances. It requires to consider factors such as awareness of
the testator as to the content as well as the consequences, nature and effect of the dispositions in
the Will; sound, certain and disposing state of mind and memory of the testator at the time of
execution; testator executed the Will while acting on his own free Will;
x. One who alleges fraud, fabrication, undue influence etcetera has to prove the same. However,
even in the absence of such allegations, if there are circumstances giving rise to doubt, then it
becomes the duty of the propounder to dispel such suspicious circumstances by giving a cogent
and convincing explanation.
xi. Suspicious circumstances must be ‘real, germane and valid’ and not merely ‘the fantasy of the
doubting mind’ 1. Whether a particular feature would qualify as ‘suspicious’ would depend on
the facts and circumstances of each case. Any circumstance raising suspicion legitimate in nature
would qualify as a suspicious circumstance for example, a shaky signature, a feeble mind, an
unfair and unjust disposition of property, the propounder himself taking a leading part in the
making of the Will under which he receives a substantial benefit, etc.
11. In short, apart from statutory compliance, broadly it has to be proved that (a) the testator
signed the Will out of his own free Will,(b) at the time of execution he had a sound state of mind,
(c) he was aware of the nature and effect thereof and (d) the Will was not executed under any
suspicious circumstances.
