Mangadath Devi Amma v. Mangadath Parvathy Kutty Amma & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN** **MONDAY, THE 30TH MAY 2011 / 9TH JYAISHTA 1933** **AS.No. 343 of 1996(A)** **--------------------------------** **OS.NO.128/1992 of SUB COURT, QUILANDY** **....................** ## **APPELLANT(S)/ PLAINTIFF** **----------------------------------------** **MANGADATH DEVI AMMA, D/O. LAKSHMI AMMA, RESIDING AT KUNIYIL MELUR AMSOM, CHELIYA DESOM, QUILANDY TALUK.** **BY SRI.P.N.KRISHNANKUTTY ACHAN, SENIOR ADVOCATE BY ADV. SRI.T.SETHUMADHAVAN SMT.RASHMI RAVINDRAN** ## **RESPONDENT(S)/ DEFENDANTS** **------------------------------------------------** **1. MANGADATH PARVATHY KUTTY AMMA, D/O. LAKSHMI AMMA, RESIDING IN POTTAKATTIL, EDAKULAM AMSOM,** **DESOM QUILANDY TALUK.** **2. YOUNGER SISTER -DO- NARAYANI AMMA, RESIDING IN** **THARAKKATTU, -DO-(DIED)** **3. YOUNGER BROTHER -DO- KUTTIKRISHNAN NAIR, RESIDING IN** **VYAPURATH, -DO- -DO-(DIED)** ## ***ADDL.R4 IMPLEADED** - ***R4: S.V.UNNIKRISHNAN NAIR, S/O.SREEDHARAN NAIR, KUNIYIL HOUSE, CHELIYA DESOM, AMSOM QUILANDY TALUK,** - **KOZHIKODE DISTRICT.** **LEGAL HEIR OF DECEASED K.BHASKARAN WHO WAS THE LEGAL HEIR OF PREDECEASED R2 IS IMPLEADED AS ADDL.4 AS PER ORDER DATED 19/1/2010 IN IA NO.4547/2009** **2/-** **-2-** ## **AS.NO.343/1996** ## ***ADDL.R5 TO R7 IMPLEADED** - ***R5: THANKAMANI AMMA, W/O.LATE KUTTYKRISHNAN NAIR, 63 YEARS, OF AGE, VYAPURATH, EDAKULAM.P.O.,** - **CHENGOTTUKAVU VILLAGE, KOYILANDY TALUK, KOZHIKODE, PIN- 673 306.** - ***R6: VEERAMANY, S/O.LATE KUTTYKRISHNAN NAIR,** - **35 YEARS, OF AGE VYAPURATH,EDAKULAM.P.O., CHENGOTTUKAVU VILLAGE, KOYILANDY TALUK, KOZHIKODE, PIN-673 306.** - ***R7: SUDHAMANI,D/O. LATE KUTTYKRISHNAN NAIR,** - **W/O.RAMACHANDRAN, THAZHEPOTTEKATTIL, 39 YEARS, OF AGE, EDAKULAM.P.O., CHENGOTTUKAVU VILLAGE, KOYILANDY TALUK, KOZHIKODE, PIN-673 306.** - ***ADDL. 5 TO 7 IMPLEADED AS PER ORDER DATED 30/5/2011 IN I.A.NO.4456/2010** **R1 BY ADV.SRI.T.V.ANANTHAN, SRI.C.D.JOSE** **R3 BY ADV. SRI.P.R.SREEJITH SRI.P.S.SREEDHARAN PILLAI SRI.M.SUNIL ADDL.R4 BY ADV.SRI.K.MOHANAKANNAN SRI.PARTHASARATHY.** **THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 30/05/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## Thottathil B.Radhakrishnan & ## S.S.Satheesachandran, JJ. = = = = = = = = = = = = = = = = = = = = = = = = A.S.No.343 of 1996-B = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 30[th] day of May, 2011. Judgment **==> picture [39 x 14] intentionally omitted <==** ## Thottathil B.Radhakrishnan, J. 1.The plaintiff in a suit for partition is the appellant. She and the three defendants are the children of late Lakshmi Amma and Appu alias Paithal Kidave. The 2[nd] defendant supported the plaintiff. The court below upheld Ext.B1 Will of Lakshmi Amma, as propounded by defendants 1 and 3 and accordingly dismissed the suit. Hence, this appeal. - 2.At the outset, we may note that there is no controversy, before us on the findings of the AS343/96 -: 2 :- court below as regards proof of Ext.B1 Will, in as much as, D.W.2 is admittedly the attestor of Ext.B1. The plaintiff had also not tendered any oral evidence before the court below. 3.The learned counsel for the appellant-plaintiff argued that going by the allotments under Ext.B1, item A schedule therein which is allotted to the plaintiff is not a piece over which the testator Lakshmi Amma had title. This has to be taken as a suspicious circumstance surrounding the execution of the Will, it is argued. The premise of this argument is that the plaintiff was widowed in her young age and had a son and the mother with whom the plaintiff was living would not have, in all prudent reasonableness, intended to disinherit the plaintiff. - 4.Before proceeding further, we may notice that all that the 2[nd] defendant got was a life estate over C schedule in Ext.A1. She supported the plaintiff in the court below. She has not filed any appeal. AS343/96 -: 3 :- - 5.The short issue that arises for decision is as to whether the contesting defendants 1 and 3 had succeeded in establishing the due execution of Ext.B1 Will by Lakshmi Amma and that she had the testamentary capacity to do so. The testamentary capacity not being under challenge and due execution having been proved through the evidence of D.W.2, what would then be relevant for consideration is only as to whether the execution of the Will is surrounded by any suspicious circumstance as could be treated as sufficient to dislodge Ext.B1 Will. - 6.The learned counsel for the appellant-plaintiff referred to Section 59 of the Indian Succession Act, 1925 to point out that a person can execute a Will and thereby dispose of only his property. - 7.Section 59 says that every person of sound mind, not being a minor, may dispose of his property by Will. The thrust of that statutory provision is AS343/96 -: 4 :- only in relation to the person who executes the Will and not to the quality of the property which he deals with under Will. This is a well settled proposition of law and while considering matters in relation to proof of Will, that is to say, akin to probate jurisdiction, the court would not look into the question of title of the testator to the property dealt with under Will. In support of this proposition are the decisions of the Apex Court in Ishwardeo Narain Singh v. Kamta Devi[AIR 1954 SC 280] and Chiranjilal Shrilal Goenka v. Jasjit Singh[(1993) 2 SCC 507] followed by this Court in Pappoo v. Kuruvilla[1994(2) KLT 278]. The provisions in a Will in relation to title to property may be relevant in connection with the Will only when the property dealt with under the Will and its title becomes subject matter of the suit which calls for determination of such title. Otherwise, not. The identity of the property dealt with under Ext.B1 Will and the professed title of the testator of the propounded Will may seldom have a bearing on deciding as to whether AS343/96 -: 5 :- the execution of the Will is shrouded in suspicious circumstances, except, may be, in a case where the inclusion or exclusion of certain properties is shockingly arbitrary or disproportionate to the common course of human conduct as the court would expect from a testator whose Will is under consideration by the court. - 8.In the case in hand, we find that the testator Lakshmi Amma and her husband Appu had executed separate Wills and got them registered on the same day. The appellant-plaintiff got certain properties under her father's Will also. The court below, in our view, came to a very sound conclusion that it would only be worthwhile to think that Lakshmi Amma and her husband Appu had deliberations among themselves as to the manner in which they would distribute the properties held by them. - 9.Remember, Ext.B1 Will in question was executed in 1965, i.e., at a point of time when Kerala Joint AS343/96 -: 6 :- Hindu Family System(Abolition) Act was not even conceived of. The cohesiveness of the joint family as a unit couldn't have lingered in the mind of the couple as they were dealing with their self acquisitions. Along with this, is the fact that properties dealt with under A schedule in Ext.B1 were in the hands of some persons who may put forward some claim under the Kerala Land Reforms Act, which came into force in 1964 and the execution of the Wills in favour of the children at that point of time, in 1965, was also an attempt to protect the properties from any such claim being raised on the basis of the land reforms legislation. We may also note in this juncture that even the plaintiff's case is that the properties allotted to the plaintiff were in possession of various tenants. 10.Ext.B1 Will is of the year 1965. Lakshmi Amma died in 1974. Yet, the suit for injunction comes only in 1992. AS343/96 -: 7 :- - 11.Added to the aforesaid circumstances are the facts that the 2[nd] defendant to whom only life estate was provided over C schedule in Ext.B1 is one who has employed; her husband was employed; unfortunately she was issueless. - 12.In so far as the plaintiff is concerned, she was the Manager and her son, the only progeny, was a teacher in that school. - 13.The court below, evaluating the recitals in the Wills of Appu and Lakshmi Amma, has come to the conclusion that the distribution of estate by the parents in favour of the progenies was a well determined exercise. - 14.We may also note that the court below has given yet another pointer, on preponderance of probabilities, in favour of its conclusions. It made an evaluation between the contents of the Will that Lakshmi Amma had earlier executed and the terms of Ext.B1 Will. The court below rightly AS343/96 -: 8 :- found that the allotments made in both the Wills do not differ much except as regards certain bank accounts etc. 15.For the aforesaid reasons, we do not find any infirmity in the appreciation of evidence by the court below leading to the impugned decree and judgment. The same deserve only to be confirmed. In the result, this appeal fails. The same is accordingly dismissed. Having regard to their relationship, the parties are directed to suffer their respective costs. On dictating this judgment, we are told by the learned counsel for the appellant that the second defendant, who has since died, had also executed a Will. He expressed concern whether this judgment would affect any such Will. Such apprehension is, obviously, unfounded as we are sure that this judgment will have no impact on any such issue since the estate of the 2[nd] AS343/96 -: 9 :- defendant is not the subject matter of this appeal or the suit from which this appeal arises. Sd/Thottathil B.Radhakrishnan, Judge. Sd/S.S.Satheesachandran, Judge. Sha/0106 -true copy- P.S.to Judge. AS343/96 -: 10 :- ## Thottathil B.Radhakrishnan ## & S.S.Satheesachandran, JJ. = = = = = = = = = = = = = = = = = A.S.No.343 of 1996-B = = = = = = = = = = = = = = = = = Judgment 30[th ] May, 2011.