Ayyankunhi Karthiyani Amma v. Ayyankunhi Krishna Kurup and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID** **THURSDAY, THE 23RD DECEMBER 2010 / 2ND POUSHA 1932** ## **SA.No. 29 of 1996(C)** **-----------------------------** **A.S. NO.56/1991 OF SUB COURT, QUILANDY. O.S.NO.15/1990 OF MUNSIFF COURT, PAYYOLI.** **...................** ## **APPELLANT/ RESPONDENT/ PLAINTIFF** **----------------------------------------------------------** **AYYANKUNHI KARTHIAYANI AMMA, AGED 50 YEARS, D/O.RAMUNNI NAIR, SWASTAM, KARUVANCHERI AMSOM, CHALLUTTUPOYIL DESOM, VADAKARA TALUK.** ## **BY ADV. SRI.N.L.KRISHNAMOORTHY** ## **RESPONDENT(S):** **--------------------------** - **1, AYYANKUNHI KRISHNA KURUP, AGED 69 YEARS, S/O. RAMAKURUP, MILITARY PENSIONER, KARUVANCHERI AMSOM, CHALLUTTUPOYIL DESOM, VADAKARA TALUK. * (DIED)** - **2, AYYANKUNHI MADHAVI AMMA, AGED 82 YEARS, D/O. RAIRU NAMBIAR, SWASTHAM, KARUVANCHERI AMSOM, CHELLATTUPAYIL DESOM, VADAKARA TALUK.* DIED** - **3, AYYANKUNHI NARAYANAN KURUP, AGED 55 YEARS,S/O. RAMUNNI NAIR, RESIDING AT PUTHIYODATHIL VEEDU, AGRICULTURIST, P.O. NAYARKUZHI.** - ****4, AYYANKUNHI LAKSHMI AMMA, AGED 50 YEARS, D/O.RAMUNNI NAIR, SWASTHAM, KRUVANCHERRI AMSOM, VADAKARA TALUK. ** (DIED)** - **5, AYYANKUNHI KAMALAKSHY AMMA,** - **AGED 45 YEARS, D/O.KUNHIRAMAN NAIR, SWASTHAM, KARUVANCHERI AMSOM, VADAKARA TALUK.** **sts** **SA.NO.29/1996** *** RESPONDENT NO.5 IS RECORDED AS LEGAL REPRESENTATIVE OF DECEASED R2 AS PER ORDER DTD 11/12/09 IN MEMO CF.6922.** ## ****ADDL. R6 & R7 IMPLEADED** **ADDL. R 6 : DEVI, D/O. LAKSHMI AMMA, KANARAKANDI MEETHAL HOUSE, KARUVANCHERI AMSOM, CHALLATTUPOYIL DESOM, VADAKARA TALUK.** **ADDL. R 7: OMANA, D/O. LAKSHMI AMMA, VADAKEDATHIL HOUSE, MUDAPILAVU AMSOM, MANTHARATHOOR DESOM, VADAKARA TALUK.** **** ADDITIONAL RESPONDENTS 6 & 7 ARE IMPLEADED AS LRS OF DECEASED R4 AS PER ORDER DTD 9/11/09 IN CMP.1282/1997.** *****ADDL. R8 TO R12 IMPLEADED** **ADDL. R 8: VIJAYALAKSHMI, D/O. LATE KRISHNAKURUP, RESIDING AT AYYNKUZHI, KARUVANCHERY AMSOM, CHALLUTTUPOYIL DESOM, VATAKARA.** **ADDL. R 9: MOHANAN, S/O. LATE KRISHNAKURUP, RESIDING AT AYYANKUZHI, MARUVANCHERY AMSOM, CHALLATTUPOYIL DESOM, VATAKARA.** **ADDL. R 10: VENU, S/O. LATE KRISHNA KURUP, RESIDING AT AYYANKUZHI, KARUVANCHERY AMSOM, CHALLATTUPOYIL DESOM, VATAKARA.** **ADDL. R 11: GIRIJA, D/O.LATE KRISHNAKURUP, RESIDING AT AYYANKUZHI, KARUVANCHERY AMSOM, CHALLATTUPOYIL DESOM, VADAKARA.** **ADDL. R 12: HEMALATHA, D/O.LATE KRISHNAKURUP, RESIDING AT AYYANKUZHI, KARUVANCHERY AMSOM, CHALLATTYPOYIL DESOM, VADAKARA.** - **ADDITIONAL RESPONDENT 8 TO 12 ARE IMPLEADED AS THE LRS OF DECEASED R1 AS PER ORDER DTD 25/11/99 IN CMP.2329/99.** ****** ADDL. R13 IMPLEADED** **ADDL.R 13: GOPALA KURUP, AYYANKUZHI HOUSE, P.O.PALAYADNADA, IRINGAL, VADAKARA, PIN- 673 530.** ****** ADDL.R 13 IS IMPLEADED AS THE LRS OF DECEASED R2 AS PER ORDER DTD 29/7/2010 IN IA NO. 2593/2009.** **R1 & R4 BY ADV.SRI.P.K.SURESH KUMAR R2 BY ADV. SRI.K.I.MAYANKUTTY MATHER SMT.JIJIMOL. J. VADAKKAN R8 TO R12 BY ADV.SRI. SREEKUMAR P. MENON** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 15/12/2010, THE COURT ON 23/12/2010 DELIVERED THE FOLLOWING.** **sts** **SA.NO. 29/1996** ## **ORDER ON I.A.NO.2914/2009 IN S.A.NO. 29/1996** ## **DISMISSED** ## **23/12/2010** **SD/- HARUN-UL-RASHID, JUDGE** **/TRUE COPY/** **P.A.TO.JUDGE** **sts** ## **HARUN-UL-RASHID, J.** ## **------------------------** ## **S.A.No.29 Of 1996** ## **---------------------Dated this the 23[rd] day of December, 2010.** ## **J U D G M E N T** The following substantial questions of law are formulated in the second appeal. - _i) In the case of a will, is not the burden heavy on the propounder and if so, whether the same discharged._ - _ii) Whether the Sub Registrar can be treated as an attestor to the will and whether he is competent to prove attestation._ - _iii) When the will is bristling with suspicious circumstances should not the court insist on the propounder to prove the will beyond doubt._ - _iv) Are the suspicious circumstances properly explained in this case to hold that the will is genuine._ - _v) When the attestor has not proved the will, can the court place reliance on the will without examining at least the scribe._ 2. The plaintiff in O.S.No.15 of 1990 on the file of the Munsiff's Court, Payyoli is the appellant. The appeal is directed against the judgment and decree in A.S.No.56 of 1991 on the file of the Sub Court, Quilandi. Pending appeal respondents 1, 2 & 3 died. Their legal representatives were impleaded as additional ## **S.A.No.29 Of 1996** ::2:: respondents. Suit was filed for partition praying to pass a decree allowing the plaintiff to allot 1/9[th] share over the plaint schedule property by metes and bounds, for realization of damages and future mesne profits. The trial court passed a preliminary decree for partition allotting the plaintiff 1/9[th] share of the plaint schedule property by metes and bounds and plaintiff and to realise mesne profits from defendants 2 & 5 with costs. The quantum of mesne profits is relegated to the final decree proceedings. Defendants 2 & 5 challenged the decree and judgment in A.S.No.56 of 1991. The appellate court allowed the appeal with costs and dismissed the suit. Parties hereinafter are referred to as the plaintiff and defendants as arrayed in the suit. 3. The plaint schedule property originally belonged to Mathu Amma of Ayyamkuzhi house. She was survived by 4 daughters byname, Narayani Amma, Ammalu Amma, Parvathi Amma and Madhavi Amma. The first defendant is the son of Narayani Amma. Plaintiff and defendant 3 & 4 are the children of Ammalu Amma. 5[th] defendant is the daughter of second defendant Madhavi Amma. ## **S.A.No.29 Of 1996** ::3:: 4. The legal heirs of deceased Mathu Amma had executed a partition deed in the year 1972 by which C schedule property, which is the plaint schedule property in this suit, was allotted to Parvathy Amma who died issueless in the year 1978. Plaintiff’s case is that the right of Parvathy Amma devolved upon the plaintiff and defendants 1 to 4. Plaintiff’s case is that 5[th] defendant is in possession of the plaint schedule property along with the second defendant. Deceased Parvathy Amma was allotted plaint C schedule property as item No.1 & 2 in the partition deed of the year 1972. The second defendant Madhavi Amma is residing in the plaint schedule property along with her daughter 5[th] defendant. According to the plaintiff she is entitled to 1/9[th] share, first defendant is entitled to 3/9[th] share, defendants 3 & 4 each entitled to 1/9[th] share and the second defendant 3/9[th] share over the plaint schedule property. 5. Defendants 1 & 4 filed a joint written statement supporting plaintiff's case. Defendants 2 & 5 filed separate written statement. Defendants 2 & 5 contented inter alia that plaintiff and defendants 1, 3 & 4 have no joint right or possession over the plaint schedule property. It is the common case that ## **S.A.No.29 Of 1996** ::4:: Parvathy Amma obtained right over the plaint schedule property by virtue of the partition deed of the year 1972 and that she died in 1978. Defendants 2 & 5 contended that Parvathy Amma had executed a will as deed No.19/1976 in favour of the 5[th] defendant and thus the 5[th] defendant has absolute right over the plaint schedule property. It is also averred that Parvathy Amma had executed the will deed by her free will and consent, that 5[th] defendant had constructed a house in the property and is residing there with her family along with her mother, who is the second defendant. The 5[th] defendant admitted that she cut and removed a jack tree from the plaint schedule property for the purpose of the construction of the house. But it is contended that the plaintiff and defendants 1, 3 & 4 are not entitled to claim any damages on account of the cutting and removal of the tree. 6. Defendants 1 & 4 claimed share in the plaint schedule property. According to them the sisters of Parvathy Amma and their deceased children inherited right over the property since Parvathy Amma died issueless. The first defendant claimed 3/9[th] share over the plaint schedule property. ## **S.A.No.29 Of 1996** ::5:: 7. The trial court recorded oral evidence of PWs 1 & 2, DWs 1 to 3 and documentary evidence of Exts.X1 & B1 to B11. 8. It is the common case of the parties that the property originally belonged to Mathu Amma and that on her death the property devolved on her legal heirs. The legal heirs executed the partition deed in the year 1972 by which C schedule property which is the plaint schedule property in the suit, was allotted to Parvathy Amma who died issueless. According to the plaintiff the right of Parvathy Amma devolved upon the plaintiff and defendants 1 to 4. 9. The dispute is centered around the validity of the will said to have been executed by Parvathy Amma in the year 1976 bequeathing the property in the name of the 5[th] defendant by disinheriting the other legal heirs including the 5[th] defendant’s mother Madhavi Amma (2[nd] defendant). According to defendants 2 & 5 the 5[th] defendant is the absolute owner of the property by virtue of Ext.X1 registered will deed No.19/1976 executed by Parvathy Amma, out of free will and accordingly, the 5[th] defendant is in possession of the plaint schedule property, who constructed a house and is residing there with her family along ## **S.A.No.29 Of 1996** ::6:: with the second defendant. The 5[th] defendant produced Exts.B2 to B9 revenue tax receipts and Exts.B10 & B11 building tax receipts. 10. The plaintiff and supporting defendants admitted the fact that the 5[th] defendant is in possession and enjoyment of the plaint schedule property. Plaintiff when examined as PW1 testified that the plaint schedule property is in the possession of defendants 2 & 5 and that after the death of Parvathy Amma the profits are taken by defendants 2 & 5. The new house in the property was constructed in the year 1987 and it is not disputed that defendants 2 & 5 are residing there with their family members. PW1 also admitted that the 5[th] defendant is in possession of the property and is paying land tax and taking profits from the property. At the same time PW1 testified that the 5[th] defendant’s possession over the property is in her capacity as a co-owner. Defendants 2 & 5 pointed out that the plaintiff failed to file any rejoinder challenging the validity of the will though she came to know about the execution of the will at least from the pleadings in the written statement of defendants 2 & 5. PW1 contended that deceased Parvathy Amma was not in sound ## **S.A.No.29 Of 1996** ::7:: health, that she was suffering from mental derangement and rheumatic complaint and contended that Parvathy Amma was not physically and mentally fit and was not in a sound disposing state of mind at the time of execution of the will. The trial court noted that the two grounds raised by the plaintiff to challenge the will is the physical and mental infirmity of Parvathy Amma. PW1 testified before the court that Parvathy Amma was suffering from mental infirmity 10 years prior to her death. At the same time she says that no treatment was given to her for mental infirmity. Plaintiff examined PW2 who is the person who is said to have treated Parvathy Amma. PW2 positively deposed that he has not treated Parvathy Amma for mental decease. The trial court found that there is no evidence to substantiate the contention that Parvathy Amma had any mental decease. PW2 was examined to prove that he had treated Parvathy Amma for physical ailment. The trial court disbelieved the version of PW2. Trial court observed that there is no evidence to show that Parvathy Amma had any decease as alleged by PW1. Thus the trial court on facts held that there is absolutely no acceptable evidence to show that Parvathy Amma had any decease either ## **S.A.No.29 Of 1996** ::8:: physical or mental. Thus physical and mental infirmity which are the two grounds urged by which the will is challenged stands not proved. 11. The trial court also examined the family background, other circumstances leading to the execution of Ext.X1 will and observed as follows: The 5[th] defendant is the daughter of the second defendant. The second defendant and Parvathy Amma are direct sisters. Parvathy Amma is a divorcee with no issues. In the family partition the house and appurtenants thereto was allotted to the second defendant. So, Parvathy Amma who had no house started to reside with the second defendant, her sister. The second defendant and 5[th] defendant were looking after Parvathy Amma. The 5[th] defendant as DW1 testified before the court that Parvathy Amma loved her like her own daughter. Ammalu Amma, the mother of the plaintiff and defendants 3 & 4 and Narayani Amma, the mother of the first defendant are not direct sisters of Parvathy Amma. Their father was different though mother was the same. Parvathy Amma and the second defendant were uterine sisters. Parvathy Amma has got ## **S.A.No.29 Of 1996** ::9:: proximate relationship with defendants 2 & 5 when compared to the blood relationship with the remaining defendants. The nature of relationship also shows that it was only natural that Parvathy Amma has chosen 5[th] defendant as legatee. The trial court also noticed the admitted position that 5[th] defendant is in possession of the property and that that Exts.B2 to B9 and Exts.B10 & B11 are the revenue and building tax receipts in the name of the 5[th] defendant. It has come out in evidence that 5[th] defendant also had availed a loan from the bank after offering Ext.X1 will as security. Ext.X1 will is executed on 1976. Parvathy Amma died on 7.10.1978. Suit was filed by the plaintiff only in the year 1990 i.e., after a period of 12 years from the date of death of Parvathy Amma. All these facts were also taken into consideration by the trial court as well as the appellate court to conclude that there was due execution of Ext.X1 will. 12. After examining the facts and circumstances as stated above, the trial court, following certain decisions held that Ext.X1 will is not valid for want of non-compliance of Section 63(c) of the Indian Succession Act and Section 67 of the Indian Evidence Act. The court also examined as to whether the plaintiff is ## **S.A.No.29 Of 1996** ::10:: entitled to damages for the alleged cutting and removal of jack tree worth Rs.1,800/-. The trial court held that for want of evidence the plaintiff is not entitled to any damages. The trial court passed a preliminary decree allowing partition of plaintiff’s 1/9[th] share by metes and bounds with mesne profits from defendants 2 & 5. 13. In the appeal preferred by defendants 2 & 5 the lower appellate court re-appreciated the evidence on record. The court also referred to Section 63(c) of the Indian Succession Act which deals with the essential formalities that have to be complied with in the execution of a will. Ext.X1 will is produced before the court from the custody of a bank from where the 5[th] defendant has availed a loan pledging the property. The appellate court noticed that the plaintiff challenged the genuineness of Ext.X1 will on two grounds. As noted by the trial court the first ground is as to whether Parvathy Amma was having a sound disposing state of mind at the time of execution of the will and whether she was suffering from mental infirmity and the second ground is as to whether she was physically incapacitated due to rheumatic complaint. The appellate court examined the evidence adduced ## **S.A.No.29 Of 1996** **==> picture [26 x 9] intentionally omitted <==** by the plaintiff in this regard. The oral evidence tendered by PWs 1 & 2 have been examined and analysed in detail. After a close and careful examination of testimonies of PWs 1 & 2 the appellate court observed that the court is unable to believe the version of PWs 1 & 2 that the deceased Parvathy Amma was suffering from physical as well as mental infirmity. The court also on analyzing the evidence of PW2 held that PW2 is not an independent witness. The appellate court on facts confirmed the findings entered by the trial court to the effect that there is absolutely no acceptable evidence to prove that Parvathy Amma suffered from any decease either physical or mental at the time of execution of Ext.X1 will. 14. The lower appellate court also examined other circumstances and the background under which Ext.X1 will was executed. The legatee under the will who is the 5[th] defendant was examined as DW1. The Sub Registrar was examined as DW2. The court also noticed the evidence of DW1 that deceased Parvathy Amma was not having any decease as alleged by the plaintiff. The appellate court also noticed the fact that DW1 was not contradicted on the material and relevant aspects. The ## **S.A.No.29 Of 1996** ::12:: appellate court also observed that though defendants 2 & 5 raised a plea of absolute right on the strength of Ext.X1 will the plaintiff has not chosen to file a rejoinder even after knowing the defence raised by defendants 2 & 5. The appellate court further observed that the plaintiff has no case that Ext.X1 has not been executed and registered by Parvathy Amma before the Sub Registrar. Though a case of impersonisation was developed during the appellate stage orally, the appellate court found that no case of impersonisation was pleaded or proved. The appellate court also noticed that no fraud or mis-representation was also seen alleged. 15. The Sub Registrar’s evidence was also considered by the lower appellate court in the right perspective. The Sub Registrar had spoken that he could identify the testator, that he had seen the testator signing the disputed will in his presence, that he had also affixed his signature in her presence and also in the presence of two attesting witnesses. A reading of evidence of DW2 would reveal that deceased Parvathy Amma had really gone to the Registrar’s Office for execution of Ext.X1 on the alleged date and the Sub Registrar had made her to be alert about the ## **S.A.No.29 Of 1996** ::13:: nature of the execution of the document. The lower appellate court also noticed the evidence of DW2 stating that he had asked questions regarding the relevant aspects touching the execution of the document and Parvathy Amma had given rational answers. Sub Registrar also deposed that Parvathy Amma was not physically or mentally incapacitated on the date of execution of Ext.X1 will. The lower appellate court also appreciated the context under which the 5[th] defendant constructed a house in Parvathy Amma’s property after her death. The lower appellate court also noticed the fact that after the partition in the year 1972, Parvathy Amma, second defendant and her daughter 5[th] defendant resided in the plot allotted to 2[nd] defendant till the death of Parvathy Amma. Subsequently, the 5[th] defendant constructed a house in the plaint schedule property and is residing all through with her family presumably on the strength of Ext.X1 will. The residential building was constructed in the disputed property in 1987. She is paying revenue tax and building tax. Exts.B2 to B11 tax receipts were taken note of by both courts. The lower appellate court also concluded that the 5[th] defendant had constructed a residential building in the disputed ## **S.A.No.29 Of 1996** **==> picture [26 x 9] intentionally omitted <==** property on the strength of the will. The facts and circumstances proved in this case will conclude the position that Parvathy Amma was residing along with defendants 2 & 5 and that she was under their care and attention till death. 16. The lower appellate court repelled the contention of the plaintiff that the presence of the propounder under the will in the Sub Registrar's Office is a suspicious circumstance to be taken into consideration. The lower appellate court held that the presence of the propounder is not a vitiating circumstance and is not an unnatural act as 5[th] defendant was residing along with the testator in the same house. 17. In paragraph 17 of the judgment the appellate court also considered the question as to whether the disputed will can be relied on for want of corroborative evidence of attesting witness or witnesses. Admittedly, one of the attesting witnesses is no more. The only witness alive is DW3. Defendants 2 & 5 had made strenuous efforts to procure the evidence of DW3. Proceedings would reveal that at last the court resorted to effect proclamation for procuring his attendance. A commission was issued. The commissioner reported non-availability of the ## **S.A.No.29 Of 1996** ::15:: witness at the time of examination. The whereabouts of the witness on that day was also not known to his wife. Taking into account the totality of the circumstances the lower appellate court observed that the attesting witness examined (DW3) was not a trustworthy witness, that he has gone to the extent of evading the proceeding of the court and the court was inclined to effect proclamation for procuring his evidence and at last the commissioner could locate him and he was examined as DW3. The lower appellate court held that he is not a trustworthy witness and that he was not prepared to depose truth before the commissioner. DW3 when examined, admitted that he had gone to the Sub Registrar's office on the date of execution of Ext.X1 will and affixed his signature in a document executed by Parvathy Amma. He deposed that he does not know the nature of the document in which he has affixed his signature. On a reading of the evidence of DW3, the lower appellate court concluded that the witness is not prepared to talk truth and he was unsuccessfully attempting to discredit Ext.X1 will with deliberate intention. The lower appellate court also noticed that the trial court reposed total faith on the evidence given by this ## **S.A.No.29 Of 1996** ::16:: untrustworthy witness. The lower appellate court relied on the decision reported in _**Ittopp Varghese v. Poulose**_ (1974 KLT 873) wherein it was held that “ _when the court is satisfied that the attesting witness has deliberately and falsely denied the execution of disputed will the court is entitled to look into the other circumstance involved and draw a conclusion on the question of attestation_ ”. The lower appellate court held that the Sub Registrar has clearly identified the testatrix with the help of other attesting witnesses and that his version can be considered as the version of independent witness. The lower appellate court for the aforesaid reasons disagreed with the learned Munsiff and held that there is compliance of Section 63(c) of the Indian Succession Act and Section 67 of the Indian Evidence Act. Taking into consideration all the above said factors the appellate court held that Ext.X1 will is a genuine document. The court also on facts and circumstances held that it can be legitimately inferred that the plaintiff has deliberately suppressed the existence of will in the plaint and she has made only an experiment to drag defendants 2 & 5 to an unnecessary litigation. ## **S.A.No.29 Of 1996** ::17:: 18. The question as to whether Ext.X1 will was validly executed and as to whether Ext.X1 will satisfy all the requirement under the law are examined in detail by the court below. The appellate could held that Ext.X1 is a validly executed will. The trial court also repelled the contention raised by the plaintiff namely, physical and mental incapacity of the testator. The lower appellate court confirmed the said findings. The trial court dismissed the suit solely for the reason that there is no satisfactory and sufficient requirements under Section 63(c) of the Indian Succession Act and Section 67 of the Indian Evidence Act. That question was also examined by the lower appellate court in the facts, circumstances, evidence and on the basis of principles of law laid down by various courts. I do not think that any valid grounds are made out by the appellant/plaintiff to set aside the decree and judgment passed by the lower appellate court. No question of law muchless any substantial questions of law arises for consideration in the second appeal. In the result the appeal fails and accordingly, dismissed. No order as to costs. **HARUN-UL-RASHID, Judge.** bkn/-