IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE V.CHITAMBARESH & THE HONOURABLE MR. JUSTICE SATHISH NINAN
FRIDAY, THE 31ST DAY OF MARCH 2017/10TH CHAITHRA, 1939
## AS.No. 515 of 1996 ( )
----------------------AGAINST THE JUDGMENT & DECREE IN OS 486/1990 of II ADDL.SUB COURT,KOZHIKODE DATED 31-03-1995
APPELLANT(S)/1[st] DEFENDANT
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KANHACHANKANDY VIJAYAN, S/O.RAMAN CHERUVANNUR AMSOM DESOM KOZHIKODE TALUK.
BY ADVS.SRI.O.RAMACHANDRAN NAMBIAR SMT.PRASANNA H.KAMATH
## RESPONDENT(S):
- --------------
- 1. PANDARAKANDI KAMALA, D/O.KANHECHANKANDY RAMAN KACHERI AMSOM DESOM, KOZHIKODE TALUK. _**(Died)**_
- 2. KUNDUR VIMALA, D/O.KANHECHANDANDY RAMAN KALATHILKUNNU AMSOM, DESOM, KOZHIKODE TALUK. _**(Died)**_
3. PARAMBIL KALARI THOTTATHIL LALITHA, D/O.KANHECHANKANDY RAMAN, VENGARI AMSOM DESOM KOZHIKODE TALUK.
4. A.K.SUSHAMA, D/O.SARASWATHI, 'SUSHAMA' ELATHUR AMSOM DESOM, KOZHIKODE TALUK.
5. A.K.SHILENDRAN, S/O.SARASWATHI 'SUSHAMA' , ELATHUR AMSOM DESOM, KOZHIKODE TALUK.
6. A.K.SREEDHARAN, S/O.A.K.APPU, 'SUSHAMA' ELATHUR AMSOM DESOM, KOZHIKODE TALUK.
7. SHAILA JAYARAJ, D/O.KANDOTH SUKUMARAN, 121F OFFICERS RAILWAY QUARTERS, ERNAKULAM, COCHIN - 16.
8. SURESHNATH, S/O.KANDOTH SUKUMARAN IF RLY QUARTERS, WELLINGTON ISLAND, COCHIN.
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9. SOBHANA MADHU, D/O.KANDOTH SUKUMARAN, BHAGYALAKSHMI NILAYAM, PLOT NO.168, OFFICERS MODEL COLONY, DASWAHALL, P.O. BANGALORE -57.
10. KANDOTH SYAMALA, S/O.KANDOTH SUKUMARAN NO.1 MUTA GARDEN, PASUMALA, MADRAS - 4.
11. KANDOTH SAJEESH, S/O.KANDOTH SUKUMARAN, CANARA BANK, DIVISIONAL OFFICE, PRAKASH DEEP, 4TH FLOOR, TOLSTORY MARG, NEW DELHI - 11.
12. KANDOTH SHIRA, D/O.KANDOTH SUKUMARAN, POSTAL ASSISTANT, THANE P.O., CANANNORE, KERALA.
Addl. 13. P.SATHEESH, S/O.LATE PANDARAKANDI KAMALA FLAT NO.524, BLOCK NO.5, EASTIL APARTMENT, KSHBS, EASTIL, KOZHIKODE - 5.
- Addl. 14. PREETHA, D/O.LATE PANDARAKANDI KAMALA SAI ANADAM, EAST HILL ROAD, CHAKORAKULAM KOZHIKODE DISTRICT - 673 006
- Addl.15. A.K.SAVITHRI, W/O.LATE RAJEEV 36, 1ST CROSS STREET, PANDIYAN NAGAR, LAKSHMIPURAM EXTENSION 2ND MUDICHI ROAD, THAMBARAM WEST, CHENNAI - 600 045, TAMILNADU STATE
- Addl. 16. P.RISHI, S/O.LATE RAJEEV, 36, 1ST CROSS ROAD PANDIYAN NAGAR, LAKSHMIPURAM EXTENSION 2ND MUDICHI ROAD, THAMBARAM WEST CHENNAI - 600 045, TAMILNADU STATE.
- Addl. 17. P.SISHIR, S/O.LATE RAJEEV 36, 1ST CROSS STREET PANDIYAN NAGAR, LAKSHMIPURAM EXTENSION 2ND MUDICHI ROAD, THAMBARAM WEST, CHENNAI - 600 045, TAMILNADU STATE.
_**(Legal representatives of deceased first respondent are impleaded as Addl.R13 to R17 as per order dated 5.6.2012 in I.A.No.4556/10)**_
***** _**(It is recorded that 15[th] respondent died and the respondents 16 and 17 already in the party array are her legal heirs vide order dated 21.12.2016 in memo dated 1.12.2016 vide c.f.No.7533/2016)**_
Addl. 18. SREEJA.K. W/O.LATE CHITHRAGARAM MANANTHRAVIL HOUSE MALAPARAMBA POST - 673 009, KOZHIKODE DISTRICT.
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Addl. 19. SUDHA.K., W/O.UDAYABHANU CHERUT HOUSE, CHAKKORATHUKULAM POST - 673 011. KOZHIKODE DISTRICT. Addl. 20. SHAJI.K., S/O.LATE SREEDHARAN KUNDOOR HOUSE, PARAYANCHERY POST - 673 016, MAVOOR ROAD, KOZHIKODE DISTRICT. Addl. 21. SHYJU.K. S/O.LATE SREEDHARAN KUNDOOR HOUSE, NEAR CHANDRIKA PRESS, MAVOOR ROAD, PARAYANCHERY POST - 673 016, KOZHIKODE DISTRICT.
_**(Legal heirs of deceased 2[nd] respondent are impleaded as additional respondents 18 to 21 vide order dated 2.3.2017 in I.A.No.3091/2016)**_
BY SRI.T.KRISHNANUNNI, SR. ADVOCATE R, BY ADV. SRI.V.RAMKUMAR NAMBIAR R13,R14,R15,R16,R17 BY ADV. SRI.M.P.SREEKRISHNAN R13,R14,R15,R16,R17 BY ADV. SMT.M.H.BINDU R1 ,R2,R3,R4,R5,R6 & ADDL.18 -R 21 BY ADV. SMT.SHAHNA
KARTHIKEYAN
THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 29-03-2017, THE COURT ON 31.3.2017 DELIVERED THE FOLLOWING:
'C.R.'
V.CHITAMBARESH & SATHISH NINAN, JJ. ------------------------A.S.No.515 of 1996
------------------------Dated this the 31[st] day of March, 2017
## J U D G M E N T
## Chitambaresh, J.
A 'Holograph Will' (one which is wholly in the handwriting of the testator) is relied on by the son in the suit filed by his sisters for partition. The Indian Succession Act, 1925 is referred to as 'the Succession Act' and the Indian Evidence Act, 1872 as 'the Evidence Act' for brevity.
2. Raman and his wife Meenakshi had seven children of whom plaintiffs 1 to 4 are their daughters and the first defendant is their son. One daughter Leela died as a spinster and the legal heirs of the other deceased daughter Nalini are defendants 2 to 7. The legal heirs of the second plaintiff are plaintiffs 5 to 7 and it is not in dispute that Raman and Meenakshi died in the years 1979 and 1972 respectively. Item No.1 property in the name of Meenakshi and Item No.2
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property in the name of Raman have been included in the plaint schedule. The court below has passed a preliminary decree for partition granting 4/6 shares to the plaintiffs which is impugned by the first defendant.
3. Only two points are canvassed by Mr.O.Ramachandran Nambiar on behalf of the appellant which are dealt with hereunder. We also heard Mr.T.Krishnanunni, Senior Advocate instructed by Mrs.Shahana Karthikeyan, Advocate on behalf of the respondents.
4. The first point urged is that item No.1 property was purchased by Raman benami in the name of Meenakshi which is not hit by the Benami Prohibition Act. The ostensible owner of item No.1 property is Meenakshi evident by Exts.A2 and A3 assignment deeds. It is in evidence that her father was the Assistant Manager in a Company wherein her grand father was also a Writer. The first plaintiff as PW.1 deposed that Meenakshi used to say that the property was purchased with the funds given by her father. There is nothing in evidence to
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show that it was Raman who advanced money for the purchase of item No.1 property in the name of Meenakshi. The mere fact that he was managing it is of no avail since it is normal for a husband to manage the property of his wife. We do not find sufficient grounds to upset the finding of the court below that item No.1 property belonged to Meenakshi.
5. The second point urged is as regards the devolution of the right of Raman over Item Nos.1 and 2 property in favour of his children. There is no dispute to the fact that item No.2 property belonged to Raman exclusively under Exts.A4 and A5 Deeds. The property would devolve on the children in equal shares in the absence of any Will executed by Raman. But then the first defendant relies on Exts.B7 Will alleged to have been executed by Raman in respect of his share in the property. It should be noted that none of the legal heirs are disinherited under Ext.B7 Will though property is allocated separately.
6. Ext.B7 Will is unregistered and is said to have
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been written by Raman himself and attested by two witnesses as mandated by law. One of the attesting witnesses has been examined as DW.2 and the other attesting witness is reportedly not alive. There is nothing in the evidence of DW.2 to discredit him and evidently Section 63 of the Succession Act and Section 68 of the Evidence Act are complied with. However the first page in Ext.B7 Will has not been signed by Raman and there is no statutory compulsion to do so under Section 2(h) of the Succession Act. The court below has compared the signatures of Raman found in Ext.B7 Will and Ext.B19 kana kychit with naked eyes. The court below has held that the signatures differ and the manner of writing in Ext.B7 Will has also been commented upon. The court below has in short refused to accept Ext.B7 Will as the last Will executed by the testator - Raman.
7. Our attention was brought to Ext.B6 letter written by Raman purporting to be a family settlement even though other sharers have not signed. We find that the
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arrangement in Ext.B6 letter are consistent with the dispositions made in Ext.B7 Will. It remains to be seen as to whether the same person Raman has written Ext.B6 letter as well as Ext.B7 Will as alleged. Ext.B7 Will has been produced along with Ext.B8 cover in which it was kept which allegedly contained the signature of Raman. Ext.B14 diary was available which allegedly contained the handwriting of Raman and the same has not been properly reckoned. The signature of Raman is also available in Ext.B16 letter to the Land Tribunal and Ext.B15 chalan duly filled up. The court below could have made a comparison of the handwriting and signatures before coming to a firm conclusion as regards Ext.B7 Will.
8. The silver lining in the cloud is that Ext.B7 Will is allegedly written by Raman himself and the handwriting of Raman is very much available. We therefore deem it fit to remand the case to the court below to obtain a report from the handwriting expert in this regard. Exts.B6, B7, B8, B14, B15 , B16 and B19 shall be forwarded to a handwriting expert
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and the opinion obtained. The opinion evidence coupled with the other evidence on record shall be taken into consideration by the court below in the disposal of the suit.
9. We would like to remind the court below that law makes a great presumption in favour of the genuineness of a holograph Will. This is for the good reason that the mind of the testator in physically writing out his own Will is more apparent in a holograph Will. Ofcourse the burden is on the propounder to show that the document is a holograph Will written in the hand by the testator himself . What is required is to formally prove the Will and very little evidence as regards execution and attestation is called for. There is a greater presumption of regularity and due execution in the case of a holograph Will warranting a different approach. [See: Joyce Primrose Prestor (Nee Vas) v. Vera Marie Vas and others (1996) 9 SCC 324].
10. Needless to say that parties shall be afforded further opportunity to lead oral and documentary evidence as
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they deem fit. It is conceded at the Bar that the house situate in the plaint schedule property has now become dilapidated and not fit for occupation. Therefore no reservation need be made in regard to the same which is also available for partition by metes and bounds. The impugned judgment and decree are set aside and the suit remanded to the court below for de novo consideration as per law. The parties shall appear in the court below on 22.5.2017 and every endeavour shall be made to dispose of the suit expeditiously.
The Appeal Suit is allowed. No costs.
Sd/-
## V.CHITAMBARESH, JUDGE
Sd/SATHISH NINAN, JUDGE
nj/29.03.2017
//True copy//
P.S. To Judge.
