Preferring One Heir Over Another In Will Not Unnatural; Court Cannot Go On Roving Inquiry Into Testator's Intention: Kerala High Court

The Kerala High Court recently held that preferring a legal heir over another cannot be considered unnatural and does not make the execution of the Will suspicious. It also held that the first appellate court cannot, on its own, raise an issue of genuineness of a Will when there was no such pleading or issue raised before the trial court in the suit.Justice Easwaran S. was considering a challenge to the decision of the first appellate court that framed certain points suo motu and held a Will to be vitiated due to suspicious circumstances due to exclusion of a legal heir.FactsA partition suit was preferred by the plaintiff (respondent) and the defendants (appellants) resisted the claim for partition stating that a Will was executed by the testator in favour of the 1st defendant and his late first daughter, Saranya. The plaintiff was the second daughter of the testator in his first wife and the 1st defendant was his second wife. In the Will there was a clause which stated that the legacy would lapse on the death of Saranya or if she died issueless after marriage. In such circumstances, the property would revert back to the 1st defendant. However, the plaintiff contended that she was entitled to one-third of the property bequeathed in the Will.The trial court dismissed the suit since the Will was proven in accordance with Section 68 of the Evidence Act and the plaintiff preferred an appeal. The first appellate court set aside the trial court's finding and decreed the suit finding that there were suspicious circumstances surrounding the execution of the Will since the plaintiff was disinherited. The defendants have filed this Second Appeal before the High Court challenging the decision of the first appellate court.FindingThe High Court considered three main questions of law in the case, which in brief are: (i) Whether the first appellate court can raise issues not raised in the plaint? (ii) Whether disinheriting a legal heir in a Will is suspicious? (iii) Whether the first appellate court was right in suo motu examining the genuineness of the Will?The High Court observed that the first appellate court was wrong in formulating issues regarding possible suspicious circumstances surrounding a Will when the trial court did not entertain them. The Court opined that the issues raised by the First Appellate Court did not have the foundation in the pleadings when the Will was duly proved and there was nothing in the oral evidence adduced to generate suspicious circumstances.Regarding the second issue of whether disinheriting an heir is suspicious, the learned Single Judge remarked that preferring a legal heir over another cannot be considered unnatural and the courts cannot go on a roving enquiry regarding the intention of the testator.The Court observed that there was no reason for the first appellate court to think there was a suspicious circumstance regarding lapse of legacy in favour of deceased Saranya. In its opinion, there was no suspicious circumstance when the law itself provides that a legacy would lapse when the beneficiary dies before the testator of the Will.To answer the final issue, the Court relied on the judgment of the Apex Court in Derek A.C. Lobo v. Ulric M.A. Lobo (2023) wherein it was held that once a propounder of a Will proves it, there is a burden on the person contesting the Will to prima facie show existence of suspicious circumstances.Therefore, the Court held that since there was no challenge regarding the genuineness of the Will, the first appellate court was wrong in entertaining such a challenge.Thus, the Court allowed the appeal. It reversed the finding the first appellate court and restored the judgment and decree of the trial court.Also Read: Exclusion Of Natural Heirs Without Reasons Raises Doubt About Genuineness Of Will : Supreme CourtCase No: RSA No. 1211 of 2018Case Title: Jayasree and Anr. v. Sindhu AjayanCitation: 2025 LiveLaw (Ker) 429Counsel for the appellants: K.P. SreekumarCounsel for the respondent: Alexander Joseph, Akhilasree Bhaskaran, Antony Nikhil Remelo, Ajith SunnyClick To Read/Download Judgment

Preferring One Heir Over Another In Will Not Unnatural; Court Cannot Go On Roving Inquiry Into Testator's Intention: Kerala High Court

K. Salma Jennath

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