Kalliayni and others v. Lakshmi and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **WEDNESDAY, THE 29[TH] DAY OF NOVEMBER 2023 / 8TH AGRAHAYANA, 1945 RFA NO. 15 OF 2004** **AGAINST THE JUDGMENT AND DECREE DATED 24/6/2003 IN OS 41/1999 ON THE FILE OF SUBORDINATE JUDGES' COURT, VADAKARA** ## **APPELLANTS/PLAINTIFFS:** - ***1 KALLIYANI AGED 77 YEARS D/O KRISHNAN, KRISHNA NIVAS, VADAKARA AMSOM DESOM, VADAKARA TALUK. (*DIED) (LEGAL HEIRS IMPLEADED)** - **2 JANAKI KARUNAKARAN, AGED 68 YEARS SAI SREE BHAVAN, EXPRESS HOUSING COLONY, WEST HILL, CALICUT-5.** - **3 SARADA, AGED 65 YEARS (DIED) KALAPPANI BHAVAN, HOUSE NO.5/3206, V.K.SANKUNNI ROAD, KOZHIKODE.** - **4 MANIKOTH THAZHA VAYALIL SAROJINI DAMAYANTHI, PUDUPPANAM, VADAKARA TALUK.** - **5 RAVEENDRAN, MANIKOTH THAZHE VAYALIL PUDUPPANAM, VADAKARA.** **LEGAL HEIRS OF 3RD APPELLANT** - **6 RAJESWARI, D/O.SARADA, HOUSE NO.5/3206, V.K.SANKUNNI ROAD, MAVOOR ROAD, KOZHIKODE.** - **7 DINESH K.R., S/O.SARADA, HOUSE NO.5/3206, V.K.SANKUNNI ROAD, MAVOOR ROAD, KOZHIKODE.** 2 **R.F.A.No.15 of 2004** |**8**<br>**9**<br>**10**<br>**11**<br>**12**<br>**13**<br>**14**<br>**15**|**ADDL.APPELLANTS**<br>**JAYARAJAN K.P.**<br>**S/O LATE KALLIYANI,**<br>**KRISHNA NIVAS,**<br>**VADAKARA AMSOM DESOM,**<br>**VADAKARA TALUK.**<br>**SHYLAJA K. P**<br>**D/O LATE KALLIYANI,**<br>**KRISHNA NIVAS,**<br>**VADAKARA AMSOM DESOM,**<br>**VADAKARA TALUK.**<br>**VASANTHA K. P**<br>**D/O LATE KALLIYANI,**<br>**KRISHNA NIVAS,**<br>**VADAKARA AMSOM DESOM,**<br>**VADAKARA TALUK.**<br>**PREMI K.P.**<br>**D/O LATE KALLIYANI,**<br>**KRISHNA NIVAS,**<br>**VADAKARA AMSOM DESOM,**<br>**VADAKARA TALUK.**<br>**PRASANNAKUMARI**<br>**D/O LATE KALLIYANI,**<br>**KRISHNA NIVAS,**<br>**VADAKARA AMSOM DESOM,**<br>**VADAKARA TALUK.**<br>**GEETHA K.P.**<br>**D/O LATE KALLIYANI,**<br>**KRISHNA NIVAS,**<br>**VADAKARA AMSOM DESOM,**<br>**VADAKARA TALUK.**<br>**SOBHANA K P**<br>**D/O LATE KALLIYANI,**<br>**KRISHNA NIVAS,**<br>**VADAKARA AMSOM DESOM,**<br>**VADAKARA TALUK.**<br>**JAYAPRAKASHAN K P**<br>**S/O LATE KALLIYANI,**<br>**KRISHNA NIVAS,**<br>**VADAKARA AMSOM DESOM,**<br>**VADAKARA TALUK.**| |---|---| 3 **R.F.A.No.15 of 2004** ## **16 ANOOPKUMAR** **S/O LATE CHANDRI, KRISHNA NIVAS, VADAKARA AMSOM DESOM, VADAKARA TALUK.** - **17 ABENA** **D/O LATE CHANDRI, KRISHNA NIVAS, VADAKARA AMSOM DESOM, VADAKARA TALUK.** ## **18 NANU** **H/O LATE CHANDRI, KRISHNA NIVAS, VADAKARA AMSOM DESOM, VADAKARA TALUK.** **(LEGAL HEIRS WHO ARE CHILDREN OF DECEASED 1ST APPELLANT AND THE CHILDREN OF THE PRE DECEASED DAUGHTER OF THE DECEASED 1ST APPELLANT ARE IMPLEADED AS ADDL A8 TO A18 AS PER ORDER DATED 22/03/2007 IN IA 1055/07)** **BY ADV SRI.C.JAYACHANDRAN** ## **RESPONDENTS/DEFENDANTS:** **1 LAKSHMI D/O KANNAN, KALIPPANTARIDU, VADAKARA.** - **2 RAMACHANDRAN, KALIPPANTARIDU, VADAKARA.** - **3 REETA, AGED 34 YEARS, KALIPPANTARIDU, VADAKARA.** - **4 PUSHPA, AGED 30 YEARS, KALIPPANTARIDU, VADAKARA.** 4 **R.F.A.No.15 of 2004** **5 VALSALA, AGED 28 YEARS, KALIPPANTARIDU, VADAKARA.** **6 MADHAVI, D/O. KUNHIRAMAN, AGED 70 YEARS** **MUNIRA QUARTERS, KANOOKARA DESOM, THANA P.O., KANNANNORE 12.** **7 SHYMALA MADHAVAN, AGED 52 YEARS, MUNIRA QUARTERS, KANOOKARA DESOM, THANA P.O., KANNANNORE 12.** - **8 THYYULLATHIL RAGHAVAN** **S/O. KALLULATHIL CHATHAN, AGED 47 YEARS, NADAKKUTHAZHA AMSOM, MEPPOYIL DESOM, KOZHIKODE.** **BY ADVS.SRI.MOHANAN V.T.K. SRI.K.V.SOHAN** **THIS REGULAR FIRST APPEAL HAVING COME UP FOR FINAL HEARING ON 24/11/2023, THE COURT ON 29.11.2023 DELIVERED THE FOLLOWING:** 5 **R.F.A.No.15 of 2004** ## **C.S.SUDHA, J.** **---------------------------------------------------R.F.A.No.15 of 2004 ----------------------------------------------------** **Dated this the 29[th] day of November, 2023** ## **J U D G M E N T** This appeal under Section 96 read with Order XLI Rule 1 CPC has been filed by the plaintiffs against the judgment and decree dated 24/06/2003 in O.S.No.41/1999 on the file of the Subordinate Judge's Court, Vadakara. The respondents herein are the defendants in the suit. The parties in this appeal will be referred to as described in the suit. 2. According to the plaintiff, the plaint schedule property and the building therein belonged to late Krishnan, father of plaintiffs 1 to 3; late Damayanthi and late Narayanan. The fourth and the fifth plaintiffs are the children of Damayanthi. The first defendant is the second wife of Narayanan and defendants 2 to 5, their children. The sixth defendant is the first wife of Narayanan and the seventh defendant, their daughter. The eight defendant is the person to whom a portion of the plaint schedule property has been sold by Narayanan. When Krishnan passed away, the plaint schedule property devolved on his children. Thus plaintiffs 1 to 3 are each entitled to 1/5 share; the fourth and fifth plaintiffs to 1/5 share of Damayanthi and 1/5 share to 6 ## **R.F.A.No.15 of 2004** Narayanan. Narayanan passed away and hence his share has devolved on the sixth and seventh defendants. There was no valid marriage between Narayanan and the first defendant and hence defendants 1 to 5 are not entitled to any share in the property. Narayanan is also no more. Defendants 1 to 5 are in possession of the plaint schedule property. The request of the plaintiff for partition was not acceded to by the defendants and hence a lawyer notice was issued to the defendants. Defendants 1 to 5 have send a reply raising false and untenable contentions and has also set up a Will alleged to have been executed in the year 1963 by Krishnan bequeathing all his properties to Narayanan. There is no such Will as claimed by the defendants. Krishnan never intended to execute a Will. If it all there is a Will, it must be a fabrication of Narayanan. Krishnan was not in a sound state of mind to execute any Will. There was absolutely no reason for him to execute the Will as he loved all his children equally. Narayanan had only 1/5 share in the property and therefore, even if he had sold any extent out of the plaint schedule property, that can only be from the share of Narayanan. As defendants are not amenable for partitioning the property, the suit seeking partition. In the alternative, the plaintiffs also prayed that in case the court found that there was infact a Will as claimed by the defendants, the plaintiffs are to be allotted their share in the residential building situated in 7 ## **R.F.A.No.15 of 2004** the plaint schedule property. 3. Defendants 1 to 5 filed written statement denying the plaint allegations. The allegation that marriage between Narayanan and sixth defendant had not been dissolved is incorrect and false. It was after the dissolution of marriage with the sixth defendant, Narayanan had married the first defendant. The marriage between Narayanan and the first defendant is a valid marriage and hence defendants 2 to 5 are their legitimate children. In the year 1963, Krishnan executed a Will by which the entire plaint schedule property excluding the residential building and the movables therein have been bequeathed in favour of Narayanan. Therefore, the plaintiffs or defendants 6 and 7 have no right in the plaint schedule property. On the basis of the Will, Narayanan has obtained a purchase certificate also in his favour. It was nearly ten years after the execution of the Will, Krishnan died in the year 1974. Till his death, Krishnan was hale and healthy and had no ailments to speak of. He was in a fit state of mind to execute the Will. No suspicious circumstances are there surrounding the execution of the Will as alleged by the plaintiffs. As per the Will, the entire plaint schedule property devolved on Narayanan and hence he had every right to assign a portion of the same to the eight defendant. Krishnan according to his financial capacity had married off defendants 1 to 3 and late Damayanthi and hence the reason 8 ## **R.F.A.No.15 of 2004** why no property was allotted to them. The reason for not giving any property to the daughters has also been specifically mentioned in the Will. Narayanan had no residence of his own. Hence he was residing with Krishnan in the building in the plaint schedule property till the latter's death. The plaintiffs after their marriage have been residing in the respective house of their husbands. After the death of Krishnan, Narayanan and family continued their residence in the building situated in the plaint schedule property. If at all the plaintiffs had any right over the same, the same has been lost by adverse possession and limitation. In case the court grants partition, the residential building situated in the property is to be allotted to the share of defendants 1 to 5. Narayanan had made several valuable improvements in the residential building and therefore when the building is valued, the improvements made shall be deducted and the house valued accordingly. 4. Defendants 6 and 7 have filed written statement supporting the claim of the plaintiffs. 5. The eight defendant has filed written statement denying the plaint allegations. According to him he has purchased 18 cents comprised in re-survey no.265/15 (sy.104/7) from out of the plaint schedule property from Narayanan. After the purchase, he has constructed a residential building in 9 ## **R.F.A.No.15 of 2004** the property in which he is residing. The property purchased by him is not partible. In case the property is found to be partible, the property purchased by him is to be allotted to the share of the defendants. 6. On completion of pleadings, necessary issues were raised by the trial court, pursuant to which the parties went to trial. PW1 was examined and Exts.A1 and A2 were marked on the side of the plaintiffs. DW1 was examined and Exts.B1 to B15 were marked on the side of defendants 1 to 5. The trial court on an appreciation of the oral and documentary evidence and after hearing both sides, by the impugned judgment, partly decreed the suit by which it has been held that plaintiffs 1 to 3 are entitled to 1/5 share each and plaintiffs 4 and 5 together to 1/5 share in the residential building situated in the plaint schedule property. The house in the plaint schedule property shall be allotted to the share of defendants 1 and 2 and the plaintiffs be given the value of the house in proportion to their share. Aggrieved, the plaintiffs have come up in appeal. 7. The points that arises for consideration in this case are - (i) Whether the trial court was right in holding that the presumption contained under Section 90 of the Evidence Act is applicable to Ext.X1 disputed Will. (ii) Whether there is any infirmity in the findings of the trial court calling for an interference by this Court. 10 ## **R.F.A.No.15 of 2004** 8. Heard both sides. 9. The fact that the plaint schedule property and the residential building therein belonged to late Krishnan is admitted. The relationship of the parties is also admitted. According to the learned counsel for the plaintiffs, Krishnan would never have executed Ext.X1 Will; that he loved all his children equally; that he had good relations with all his sons-in-law and that there was never any occasion for Krishnan to have executed any Will. These factors were pointed out as suspicious circumstances in the case set up by the defendants. I am afraid I cannot agree to this argument advanced by the learned counsel for the plaintiffs. The very purpose or the intention of a testator in executing a Will is to deviate from the rules of succession and to bequeath the property in a manner which she/he thinks fit. Therefore the factors pointed out alone cannot be taken to be grounds to suspect the execution of the Will. 10. Another suspicious circumstance pointed out is that as per Ext.X1 Will, Krishnan disinherited plaintiffs 4 and 5, his grandchildren for no reason(s). Going by the recitals in Ext.X1 Will, Krishnan had taken over the textile business that was admittedly being run by the husband of Damayanthi after the latter's death. But the fourth and the fifth plaintiffs who are the children of Damayanthi and grand children of Krishnan have 11 ## **R.F.A.No.15 of 2004** not been provided for. This according to the learned counsel for the plaintiffs was quite unlikely and an improbable act on the part of a loving grandfather like Krishnan. A reading of the recitals in Ext.X1 Will would show that after the textile business had been taken over by Krishnan on the demise of Damayanthi's husband, payments were made and the outstanding liabilities cleared. It is stated that for the existing stock, furniture etc. in the shop, an amount of ₹400/- has been fixed as its value on the basis of discussions that took place at the intervention of mediators. Out of this, the mother-in-law of Damayanthi was entitled to ₹100/-. However, she released her share to the children of Damayanthi relating to which receipt has been obtained. This amount was due to be paid to Damayanthi and her children. However, when the daughter of Damayanthi was married off, money for gold ornaments and other expenses, was given by Narayanan. Hence, the children have no further rights in the textile business. The textile business is being conducted with Krishnan's own funds and hence none other than Naraynan has any right in the proceeds of the business. In addition, it is also stated that Krishnan had paid off the liabilities relating to the business. The said amounts were also due to him. However, he has relinquished the said claims in favour of Damayanthi's children. Hence, the argument that the grand children had been completely disinherited and not provided for is also 12 ## **R.F.A.No.15 of 2004** incorrect. 11. According to the plaintiffs, Krishnan did not have the testamentary capacity to execute the Will as he was quite ill. Admittedly Krishnan had retired as a Clerk from the Sub Registrar office. It was nearly 10 years after the execution of Ext.X1 Will, he had passed away. The first plaintiff when examined as PW1, deposed that Krishnan had difficulty in walking. When she was asked about his alleged ailments, she replied that Krishnan had arthritis and piles. However, she admitted that his age or the alleged physical ailments did not in any way affect his memory. There is no evidence that Krishnan had any serious ailments which had affected his mental faculties. That being the position, it can only be found that Krishnan did have the testamentary capacity to execute the Will. 12. Now coming to the all important question as to whether the presumption under Section 90 of the Evidence Act is applicable to Ext.X1 Will. According to the trial court, the presumption is applicable and hence Section 68 of the Evidence Act need not be complied with. It was argued by the learned counsel for the plaintiffs that compliance of Section 68 is mandatory and in case the plaintiffs are unable to comply with the provisions of Section 68, Section 69 would come into play. Admittedly, the provisions of Section 69 has also not been complied with. The presumption 13 ## **R.F.A.No.15 of 2004** contained under Section 90 is not applicable to Wills. In support of this argument, reference was made to the dictums in **Bharpur Singh v. Shamsher Singh, AIR 2009 SC 1766** and **Ashutosh Samanta v. S.M.Ranjan Bala Dasi, 2023 SCC Online SC 255** . 13. _Per contra_ the learned counsel for defendants 1 to 5 drew my attention to the chief examination of the first defendant examined as DW1 wherein he has deposed that one of the attesting witnesses in Ext.X1 Will is dead and the other one, completely bed-ridden and hence unable to appear and depose before the court. In addition, he also referred to the endorsement made by the Sub-Registrar in Ext.X1 to the effect that he personally knows the testator, Krishnan. This endorsement has been made in compliance of Section 34(3) of the Registration Act, 1908. The Section deals with the enquiry to be made before registration by the registering officer. Subsection (3) says that the registering officer shall enquire whether or not such document was executed by the persons by whom it purports to have been executed; satisfy himself as to the identity of the persons appearing before him and alleging that they have executed the document; and in case of any person appearing as a representative, assign or agent, satisfy himself of the right of such person to appear. Further, DW1 has also deposed that Ext.B4 is the draft of the Will prepared by Krishnan in his own handwriting. These 14 ## **R.F.A.No.15 of 2004** aspects deposed by DW1 stands unchallenged. It was therefore argued that all possible steps had been taken by the defendants in proving the Will. Law does not expect the defendants to do the impossible and hence there is certainly compliance of Section 68 of the Act, goes the argument. 14. In **Bharpur Singh** ( _Supra_ ) a two Judge Bench of the Apex Court held that the presumption regarding documents 30 years old is not applicable to a Will and that a Will must be proved in terms of the provisions of Section 63(c) of the Succession Act, 1925 and Section 68 of the Evidence Act. In case the said provisions cannot be complied with, Sections 69 and 70 of the Evidence Act providing for exceptions in relation thereto would be attracted. This dictum was followed by another two Judge Bench of the Apex Court in **Ashutosh Samantha** ( _Supra_ ). 15. Here it would be apposite to refer to the dictum in **Munnalal v. Kashibai, AIR 1947 PC 15** . The Will in the said case was also more than 30 years old and it was produced from proper custody. It was held that the trial court had rightly held that the actual execution and attestation of the Will could be presumed under Section 90 of the Evidence Act. The trial court and the appellate court differed on the question whether the presumption could be extended to the testamentary capacity of the testator. It has been held that the party setting up a Will is required to prove that the 15 ## **R.F.A.No.15 of 2004** testator was of sound disposing mind when he made his Will, but, in the absence of any evidence as to the state of the testator's mind, proof that he had executed a Will rational in character in the presence of witnesses must lead to a presumption that he was of sound mind, and understood what he was about. This presumption can be justified under the express provisions of Section 90, since a Will cannot be said to be "duly" executed by a person who was not competent to execute it; and the presumption can be fortified under the more general provisions of Section 114, since it is likely that a man who performs a solemn and rational act in the presence of witnesses is sane and understands what he is about. It was also held that if such a presumption is not drawn, it would render it impossible, in most cases, to prove ancient Wills. ## 15.1. In **Kalidindi Venkata Subbaraju v. Chintalapati Subbaraju,** **AIR 1968 SC 947** , a three Judge Bench of the Apex Court held that the presumption under Section 90 of the Evidence Act that a Will being more than 30 years old was duly executed and attested by the persons by whom it is purported to have been executed and attested can be drawn in respect of original documents relying on the decision in **Munnalal** ( _Supra_ ). Relying on the dictum in **Basant Singh v. Brij Raj Saran Singh, AIR 1935 PC 132** , it has been held that if a certified copy of a document is produced and it is 16 ## **R.F.A.No.15 of 2004** admitted under Section 65 as secondary evidence and it is produced from proper custody and is over 30 years old, only the signatures authenticating the copy can be presumed to be genuine. The production of a copy therefore does not warrant the presumption of due execution of the original document. When a copy of a Will is produced, the Court is not entitled to presume the genuineness of such Will which purports to be over 30 years old. Relying on the words, “Where any document, purporting or proved to be 30 years old” in Section 90, it has been held that the production which entitles the court to draw the presumption as to execution and attestation is of the original and not its copy. This view has been approved by the Apex Court in **Harihar Prasad Singh v. Deonarain Prasad, AIR 1956 SC 305** . In **Harihar Prasad Singh** _(Supra)_ , again by a three Judge Bench, it has been held that the presumption enacted in Section 90 can be raised only with reference to original documents and not of copies thereof. 16. The decisions relied on by the plaintiffs have been rendered by two Judge Benches of the Apex Court whereas **Munnalal ; Kalidindi Venkata Subbaraju** and **Harihar Prasad Singh** ( _Supra_ ) have been rendered by three judges' bench of the Apex Court. In **Union of India v. K.S.Subramanian, AIR 1976 SC 2433** , it has been held that it is the view of the Larger Bench that has to be followed. That being the position, relying 17 ## **R.F.A.No.15 of 2004** on the aforesaid decisions, I hold that the presumption under Section 90 is applicable to Ext.X1 Will, which has been produced from proper custody. The Will had been pledged with a bank and the same was produced on summons being issued to the authorities concerned. Plaintiffs have no case that it has not been produced from proper custody. Hence the presumption contained under Section 90 is attracted in this case. There are no suspicious circumstances or any evidence to show that Krishnan, the testator, did not have the necessary testamentary capacity. 17. The plaint schedule property does not refer to the residential building. It only refers to one acre and 54 cents of property. By way of amendment to paragraph 11 of the plaint brought in the year 2001, the plaintiffs sought an alternative prayer for partition of the house situated in the plaint schedule property, in the event of the court upholding Ext.X1 Will. As per Ext.X1, excluding the plaint schedule property, the residential building and the movables therein have been bequeathed to all the children of Krishnan. Despite bringing the alternative prayer in the body of the plaint, no amendment was brought to the prayer portion of the plaint. According to the defendants, the right, if any of the plaintiffs, in the building has been lost by adverse possession and limitation. However, no satisfactory pleadings or evidence has been brought in by the defendants to establish 18 ## **R.F.A.No.15 of 2004** ouster. Therefore, the trial court was right in holding that the plaintiffs are entitled to a share in the residential building. 18. One aspect which needs to be mentioned and which all the more probabilizes the case of the defendants regarding Ext.X1 Will and the possibility of the plaintiffs being aware of the Will needs to be referred to. Krishnan admittedly died on 10/10/1974. Succession opened on the death of Krishnan. No claim for partition is seen made till the suit was filed on 03/09/1999, i.e., 25 years after the death of Krishnan. As per Ext.B8 dated 26/12/1975, Narayanan obtained purchase certificate relating to the plaint schedule property in his name. Narayanan twice as per Exts.B9 and B10 dated 13/02/1978 and 25/01/1983 availed loans by mortgaging the plaint schedule property. Ext.B11 series are the tax receipts pertaining to the property. As per Ext.B2 dated 09/08/1993, Narayanan sold a portion of the plaint schedule property to the eighth defendant, who admittedly has constructed a building therein and started residing therein. According to the defendants, Narayanan executed a Will as per which the property has been bequeathed to defendants 2 to 5. In the share obtained by the fourth defendant, he started constructing a building therein. Ext.B14 seems to be the plan and permit relating to the said building. Though all these activities took place, the plaintiffs remained passive with no action whatsoever being 19 ## **R.F.A.No.15 of 2004** taken. No explanation whatsoever is forthcoming from the plaintiffs as to why they waited for more than 25 years after the death of Krishnan to stake their claim in the property. PW1 in the cross-examination admits that the fourth and the eighth defendants had constructed residential buildings in the property. The plaintiffs have no case that they were unaware of these facts. It appears that the plaintiffs were well aware of Ext.X1 Will and hence the reason why they did not claim any share. They seem to have come up with the claim after the death of Narayanan on 09/02/1998. As per Ext.X1, the residential building and the movables therein have been bequeathed to all children of Krishnan including the plaintiffs. It is further stated that the same shall not be partitioned, sold or liabilities incurred, the movables shall be used by those residing in the building and when the daughters come home, Narayanan shall meet all the expenses incurred then. Therefore, it must be in deference to the wishes of Krishnan that the plaintiffs had never raised any claim all these years and until the death of their brother, Krishnan. 19. The plaintiffs have also a case that there was no valid marriage between Narayanan and the first defendant as his marriage with the sixth defendant was still subsisting. Ext.B15 disproves this allegation of the plaintiffs. Ext.B1 shows that the marital relationship between Narayanan and sixth defendant had been dissolved. The first defendant therefore is the 20 ## **R.F.A.No.15 of 2004** legitimate wife and defendants 2 to 5, the legitimate children of Narayanan. Hence the finding of the trial court on the said aspect also requires no interference. 20. Defendants 1 to 5 claim that Narayanan had effected several valuable improvements in the residential building in the property. No evidence has been let in to establish that valuable improvements had been effected in the building by late Narayanan. That being the position, the request to exclude the value of improvements alleged to have been made by Narayanan, cannot be allowed. I find no infirmity in the impugned judgment. In the result, the appeal is dismissed. Interlocutory applications, if any pending, shall stand closed. Sd/- **C.S. SUDHA JUDGE** ami/