Kunjumon v. Karunakaran and Others

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: T. R. Ravi
Judgment Date: 2023-07-27
Court Decision / Holding: The Regular Second Appeal is dismissed. The trial and first appellate courts’ finding that the Will was not proven and that the plaint schedule property remains indivisible and subject to partition is affirmed. The decree allocating 8/18 to the plaintiff and 10/18 to the 7th defendant, with other defendants’ shares treated as already received or redirected, is upheld; no substantial questions arise.
Final Disposition: The second appeal fails and is dismissed.

Parties to the Case

Appellants / Petitioners

Kunjumon

Respondents

Karunakaran
Raghavan
Thankamma
Gopi
Omana
Remani
Radhamani
Devaki
Soman
Sobha

Legal Representation & Advocates

Counsels for Petitioners

• S. Sachithanananda Pai

Counsels for Respondents

• K. M. Kurian

Case Synopsis & Summary

This Regular Second Appeal arises out of a partition suit between the children of late Mundan Ayyappan. The 7th defendant, Kunjumon, challenges a decree in which issues of partition were decided, and a Will purportedly executed by Mundan Ayyappan was put to challenge. The plaint schedule property had been acquired in 1960; a patta in 1994 showed the father as owner and the 7th defendant as a co-owner. The trial court and the First Appellate Court held that the Will presented by the 7th defendant was not properly proved and that the propounder had not satisfactorily explained suspicious circumstances surrounding Execution. The defenses of other siblings claimed they held shares and that the plaintiff’s share should reflect those admissions. The High Court, presided by Justice T. R. Ravi, upheld the concurrent findings, rejecting the Will as genuine and confirming that the plaint schedule property remained undivided, with shares distributed as per the courts’ directions. While other defendants had previously accepted or surrendered shares to the plaintiff, the Court found no basis to grant more than prayed for, noting contradictions in the 7th defendant’s case (born after the alleged purchase, yet claiming earlier ownership). The appeal is dismissed, and the decree stands. The judgment cites authorities on the burden of Will proof and suspicious circumstances and affirms the lower courts’ reasoning.

Legal Doctrines & Maxims

Burden of the propounder of a Will to prove execution and explain suspicious circumstances surrounding its execution.

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contended that the property was indivisible and that the entire extent belonged to him and his father, relying on a Will to contend non-partition. He argued inconsistencies in the other defendants’ statements and alleged improper proof of the Will, asserting that the plaint claim for 9 shares (as per the pleadings) was not properly met by the decree’s distribution.

Contentions of Respondents

The respondents urged adherence to the burden of proving Will validity and execution, relying on Murthy v. C. Saradambal and Sabitha K.V to contend that the Will must be properly executed and that suspicious circumstances must be explained. They argued that the trial and first appellate courts correctly refused to accept the Will, justifying the partition and allocation of shares as decreed.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Murthy and Others v. C. Saradambal and Others	2022 (3) SCC 209	Positive	Cited and relied upon to support the burden on the Will-propounder to prove execution and explain suspicious circumstances; the judgment treats this authority as aligning with its own conclusions.
Sabitha K.V. v. Satheesan K.V and Others	2022 (1) KLT 16	Positive	Cited to reinforce the same principle regarding Will execution and suspicious circumstances; the court follows this used doctrine in its reasoning.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE T.R.RAVI** **THURSDAY, THE 27[TH] DAY OF JULY 2023 / 5TH SRAVANA, 1945** ## **RSA NO. 359 OF 2020** **AGAINST THE JUDGMENT AND DECREE DATED 29.02.2020 IN AS 25/2016 OF SUB COURT, KATTAPPANA ARISING OUT OF THE JUDGMENT AND DECREE DATED 27.02.2016 IN OS 147/2011 OF MUNSIFF COURT, KATTAPPANA APPELLANT/APPELLANT IN THE LOWER APPELLATE COURT AND 7TH DEFENDANT IN THE TRIAL COURT:** **KUNJUMON AGED 50 YEARS S/O. LATE AYYAPPAN, VETTIKOMBIL HOUSE, NARIYAMPARA, 20ACRE KARA, KATTAPPANA VILLAGE** **BY ADV S.SACHITHANANDA PAI** **RESPONDENTS/RESPONDENTS IN THE LOWER APPELLATE COURT AND PLAINTIFF DEFENDATNS 1 TO6 AND 8 TO 10 IN THE TRIAL COURT:** - **1 KARUNAKARAN AGED 60 YEARS S/O. LATE AYYAPPAN, VETTIKOMBIL HOUSE, VALLAKKADAVU, KATTAPPANA VILLAGE, UDUMBANCHOLA TALUK 685 508** **2 RAGHAVAN, AGED 78 YEARS S/O. LATE AYYAPPAN, VETTIKOMBIL HOUSE, VALLAKKADAVU, KATTAPPANA VILLAGE, UDUMBANCHOLA TALUK 685 508** - **3 THANKAMMA, AGED 80 YEARS W/O. RAMAN, VARIKKAMACKAL HOUSE, PALLICKATHODU, ARUVIKUZHY P.O, 686 503, KOTTAYAM** **4 GOPI, AGED 60 YEARS S/O. LATE AYYAPPAN, VETTIKOMBIL HOUSE, THOPPRAMKUDY, KONNACKAMALI P.O, PIN 685 604 VATHIKUDY VILLAGE, UDUMBANCHOLA TALUK** **RSA NO. 359 OF 2020** **2** - **5 OMANA, AGED 56 YEARS CHANAKAKUNNUEL HOUSE, PARAKADAVU, KATTAPPANA, UDUMBANCHOLA TALUK 685 508** - **6 REMANI, AGED 55 YEARS VEZHAMBATHUNDIYIL HOUSE, NARIAMPARA P.O, SWARNAVILASOM, PIN 685 511 KATTAPPANA VILLAGE, UDUMBANCHOLA TALUK** - **7 RADHAMANI , AGED 50 YEARS** - **KARIMPARATHOTTIYIL HOUSE, NARIAMPARA P.O, 20 ACRE KARA, KATTAPPANA VILLAGE, UDUMBANCHOLA TALUK 685 511** - **8 DEVAKI, AGED 72 YEARS** - **W/O. LATE THANKAPPAN, VETTIKOMBIL HOUSE, KADAMAKUZHY P.O, VALLAKADAVU, KATTAPPANA, KATTAPPANA VILLAGE, UDUMBANCHOLA TALUK 685 511** - **9 SOMAN, AGED 50 YEARS** - **S/O. LATE THANKAPPAN, VETTIKOMBIL HOUSE, KADAMAKUZHY, PIN 685 508 KATTAPPANA VILLAGE, UDUMBANCHOLA TALUK.** - **10 SOBHA, AGED 51 YEARS** **D/O. LATE THANKAPPAN, THANNIKKATTU HOUSE, I.T.I JUNCTION, KATTAPPANA, KATTAPPANA VILLAGE, UDUMBANCHOLA TALUK 685 508** **BY ADV SRI.K.M.KURIAN - R1** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON** **27.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **RSA NO. 359 OF 2020** **3** ## **`T.R.RAVI, J.`** ``` ---------------------------------------- RSA No.359 of 2020 ------------------------------------------- Dated this the 27[th]day of July, 2023 ``` ## **`JUDGMENT`** ``` Heard the counsel for the appellant and the counsel for the respondents. ``` ``` 2. This appeal has been filed by the 7[th] defendant in a suit for partition. The 1[st] respondent is the plaintiff. The plaintiff and defendants 1 to 7 are children of late Mundan Ayyappan. Defendants 8 to 10 are the legal representatives of late Thankappan, predeceased son of late Mundan Ayyappan. The plaint schedule property had been acquired by late Mundan Ayyappan sometime in 1960. In 1994, a patta was issued with regard to the property in the name of the father and the 7[th] defendant. The total extent of the property was 24.20 Ares and the dispute can only be with regard to one half of the said ``` **RSA NO. 359 OF 2020** **4** ``` extent which belonged exclusively to the father. The defendants other than the 7[th] defendant filed written statement stating that they got shares in the property and their share in the plaint schedule property which is to be alloted to them, may be given to the plaintiff who has not received any share. The 7[th] defendant put forward a Will in support of the argument that the property is not partible and that the entire extent belongs to him. The Trial Court as well as the First Appellate Court found that the Will has not been properly proved and that it is shrouded in suspicion. The Courts found that firstly there was an inconsistency in the stand taken by the 7[th] defendant. His contention that the property was purchased by him and his father in 1985 has been found to be not correct. During the cross examination, the 7[th] defendant admitted that he was not even born at the time when the property was purchased by the father. In chief examination, he deposed that the ``` **RSA NO. 359 OF 2020** **5** ``` property was purchased by him and his father, 3 to 4 years prior to 1982. The Court came to the conclusion that DW1 is not a reliable witness. As a matter of fact, the suit was filed in 2011 and the case of the 7[th] defendant is that he came to know about the Will only on 29.12.2015, after the institution of the suit. ``` ``` 3. I do not find any reason to take a different view with regard to the validity of the Will. The counsel for the respondents relied on the decision of the Hon'ble Supreme Court inMurthy and Others v. C.Saradambal and Others [2022 (3) SCC 209] and the decision of a Division Bench of this Court in Sabitha K.V. v. Satheesan K.V and Others [2022 (1) KLT 16], to submit that it is the burden of the propounder of a Will to prove that the Will is duly executed as well as explain the suspicious circumstances, if any, surrounding the execution of the Will. The reasons stated by the trial Court and the first appellate Court, not to accept the Will ``` **RSA NO. 359 OF 2020** ## **6** ``` as genuine, are legally correct and justified. The Courts decreed the suit and found that the plaintiff is entitled to 8/18[ share and the 7][th][ defendant is entitled to ]10/18 [share in] the property. The appellant also contends that the judgment of the Trial Court as well as the Appellate Court cannot be sustained since what has been granted is not in accordance with the plaint. It is submitted that 1/th the plaint claim itself was for 9 share, while the Court has granted 10/18 share. It is further contended that as the admitted case of the other defendants is that they have already got their share, the Court should not have alloted any share to them and appropriated the said shares to the share of the plaintiff. The above contentions are also not sustainable. The verbatim translation of the written statement filed by the defendants other than the 7[th] defendant would mean that they had received share in the plaint schedule property. It is an apparent mistake, since admittedly, the plaint schedule property had not ``` **RSA NO. 359 OF 2020** **7** ``` been divided. It has come out in evidence that the shares mentioned are properties which had been given to them by the father during his life time earlier. It is thus evident that plaint schedule property had not been partitioned and it stood in the name of the 7[th] defendant and the father. As such, right for a share in the said property is necessarily available to all the defendants and the plaintiff. The defendants other than the 7[th] defendant chose to give their share to the plaintiff which also cannot be faulted. The appellant cannot have a grievance against such a choice made by the other siblings merely because they did not choose him over the plaintiff. The Court has only granted relief on the basis of the submission made by the other defendants before the Court in their written statement that their share may be alloted to the plaintiff. It cannot hence be said that what is granted in the decree is something more than what has been prayed for and that the other defendant should be ``` **8** ## **RSA NO. 359 OF 2020** ``` non suited since they had already received share. No substantial questions arise. The second appeal fails and is dismissed. ``` ## **`Sd/-`** ``` T.R.RAVI JUDGE ``` ``` sn ```