N.D. Leela alias Leelamma alias Komalam v. Rugmini S. and Sarath (and others)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE & THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN FRIDAY, THE 18[TH] DAY OF NOVEMBER 2022 / 27TH KARTHIKA, 1944 RFA NO. 145 OF 2018 AGAINST THE JUDGMENT AND DECREE DATED 16.03.2018 IN O.S.NO.34/2017 OF II ADDITIONAL SUB COURT, ERNAKULAM ## APPELLANT/PLAINTIFF: 1 N.D.LEELA ALIAS LEELAMMA ALIAS KOMALAM, AGED 85 YEARS, W/O.LATE MADHAVA MENON, NETTAYI KODATH HOUSE, PALARIVATTOM, COCHIN-682025. (DIED) ADDITIONAL A2 TO A4 IMPLEADED ADDL.A2 SASIKALA DEVI N.M., AGED 62 YEARS, W/O.SIVASANKARAN NAIR, NETTAYI KODATH HOUSE, PALARIVATTOM, COCHIN-25. ADDL.A3 N.M.ANILKUMAR, AGED 56 YEARS, S/O.LATE N.D.LEELA, D.H.ASPIRE, C3 CANADA REPRESENTED BY HIS POWER OF ATTORNEY HOLDER, MRS.N.M.MAYA, AGED 53 YEARS, W/O.N.KRISHNAKUMAR, KUNNATH KRISHNAVILAS, THOTTAKKATUKARA, ALUVA, ERNAKULAM-683108. ADDL.A4 N.M.MAYA, AGED 53 YEARS, W/O.N.KRISHNAKUMAR, KUNNATH, KRISHNAVILAS, THOTTAKKATUKARA, ALUVA, ERNAKULAM-683108. LEGAL HEIRS OF THE DECEASED SOLE APPLICANT ARE IMPLEADED AS ADDITIONAL A2 TO A4 VIDE ORDER DATED 28.06.2019 IN I.A.No.1/2019. BY ADVS. SRI.P.SANJAY SMT.A.PARVATHI MENON ## **R.F.A.No.145/2018** ## **-:2:-** ## RESPONDENTS/DEFENDANTS: 1 RUGMINI.S., W/O.LATE ASOK KUMAR N.M., 11/263-2B, THYKOODATHIL HOUSE, EROOR SOUTH, TRIPUNITHURA, CHOCHIN, PIN CODE-682306. 2 SARATH, S/O.LATE ASOK KUMAR.N.M, 11/263-2B, THYKOODATHIL HOUSE, EROOR SOUTH, TRIPUNITHURA, COCHIN, PIN CODE-682306. BY ADVS. SRI. BIJU ABRAHAM (CAVEATOR) SRI.BIJU ABRAHAM THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 02.11.2022, THE COURT ON 18.11.2022 DELIVERED THE FOLLOWING: ## **A.MUHAMED MUSTAQUE** ## **&** ## **SHOBA ANNAMMA EAPEN, JJ.** --------------------------------------- ## **R.F.A.No.145/2018** --------------------------------------- ## **J U D G M E N T** **Dated this the 18[th] day of November, 2022** A.Muhamed Mustaque, J. This is an appeal filed challenging the dismissal of a suit for partition. The plaintiff is the mother of the deceased Asok Kumar, who owned the plaint schedule properties. Asok Kumar died on 25/11/2003. The defendants in the suit are the widow of Asok Kumar and the son of Asok Kumar. Pending ## **R.F.A.No.145/2018** ## **-:2:-** this appeal, the plaintiff died and her other children got impleaded as additional appellants 2 to 4 to prosecute this appeal. In the suit, the defendants contended that the deceased had executed a Will on 25/1/2003 and by virtue of the Will, they alone are entitled to the properties. The genuineness of the Will was questioned by the plaintiff. The plaintiff alleged that the Will was fabricated and forged by the defendants for the purpose of exclusive claim over the properties. They also disputed the signature in the Will. The court below finding that the Will is genuine and valid, dismissed the suit holding that the plaint schedule properties are not partible. The court below relied on the evidence of DW2 and DW3 to hold that the Will is genuine. DW2 claimed that he had written the Will as instructed by the deceased Asok Kumar. DW2 is ## **R.F.A.No.145/2018** ## **-:3:-** also one of the attesting witnesses. DW3 is the other attesting witness. 2. We heard the learned counsel Smt. Parvathy Menon A. appearing for the appellants and the learned counsel Shri Biju Abraham for the respondents. 3. The following circumstances are narrated to dispute the genuineness of the Will: 3.i. Ext.B1 is the disputed Will. According to the plaintiff, Asok Kumar is an educated person conversant in English and he had lawyers as close friends. Therefore, it is quite improbable for Asok Kumar to execute an unregistered Will, in writing, in Malayalam. 3.ii. Ext.B1 is full of mistakes and the name of the testator is written wrongly. ## **R.F.A.No.145/2018** ## **-:4:-** 3.iii. The signature in Ext.B1 is forged and is different from the admitted signature in Ext.A1 partition deed. 3.iv. Exts.A12 and A13 are the caveats lodged by the defendants in the year 2017 in which there was no mention of the Will alleged to have been executed by Asok Kumar. 3.v. DW1, who is the first defendant had admitted that she came to know of the existence of the Will five years ago. If she had knowledge of the existence of such a Will, she would have raised a claim based on the Will when a dispute between the plaintiff arose in connection with the construction undertaken much before the institution of the suit. Nondisclosure of the existence of the Will clearly would show that the Will was ## **R.F.A.No.145/2018** ## **-:5:-** subsequently forged and fabricated to deny the plaintiff her legitimate share. 3.vi. The deceased Asok Kumar was a public figure and involved in the activities related to the temple. There was no necessity for him to hide the execution of any deed if he really had interest in executing it. Ext.B1 Will is alleged to have been written by DW2 who is an illiterate person engaged in manual labour. It is quite improbable for Asok Kumar to rely on a manual labourer to prepare a Will when he had other contacts including intimate friends as lawyers. 3.vii. PW3 and PW4 met the deceased Asok Kumar on the day of his death. Asok Kumar did not disclose the execution of the Will to them. PW3 was a close associate of the deceased Asok Kumar and ## **R.F.A.No.145/2018** ## **-:6:-** used to accompany Asok Kumar on short pleasure trips. Non-disclosure of the execution of the Will to PW3 would clearly show that Asok Kumar had not executed the Will. 3.viii. The close contacts of Asok Kumar were examined as PW3 to PW6. None of them knew DW2 and DW3 i.e. DW2, who has written the Will and DW3, one of the attesting witnesses to the Will. 3.ix. The defendants applied for the permit for construction of a building in the plaint schedule property making the plaintiff a party to the application. The defendants also applied for a legal heirship certificate showing the plaintiff as a legal heir. ## **R.F.A.No.145/2018** ## **-:7:-** 3.x. The deposition of DW2 and DW3 that Asok Kumar was suffering from heart disease was not true and he was not hospitalised for treatment of heart disease. 3.xi. The defendants never claimed that Ext.B1 was the last Will of deceased Asok Kumar. 4. The defendants who propounded the Will explained the circumstances for executing the Will as follows: 4.i. The Will was executed by Asok Kumar when he faced with a chest pain. 4.ii. DW2 and DW3 proved the Will. 4.iii. The plaintiff admitted the signature in the Will is that of Asok Kumar. ## **R.F.A.No.145/2018** ## **-:8:-** 4.iv. The defendants were under the impression that an unregistered Will had no validity and did not raise a claim based on the Will though its existence was known to them earlier. 4.v. The new house constructed in the plaint schedule property was by availing of a loan from LIC Housing Finance and pledging gold ornaments. Asok Kumar had shifted to the new house as his stay in the tharavadu house was made impossible by his sister-in-law Sasikala Devi. Asok Kumar died in the new house on 25/11/2003. The first defendant, widow came to know about the execution of the Will when DW2, an employee of Asok Kumar informed her. 4.vi. The first defendant was of the impression that the Will has no sanctity. She approached the plaintiff for applying ## **R.F.A.No.145/2018** ## **-:9:-** for a permit for the construction of a commercial building in the land belonging to Asok Kumar and, accordingly, a legal heirship certificate was also obtained. According to the first defendant, the plaintiff also agreed to execute a settlement deed in favour of the son of Asok Kumar, relinquishing all her rights in the property. 4.vii. According to the defendants, the problem started at the instance of Sasikala Devi, sister-in-law of the deceased Asok Kumar. 5. The learned counsel appearing for the appellants relied upon the following precedents in support of their case. : ## i. **H.Venkatachala Iyengar v.** ## **B.N.Thimmajamma [1959 KHC 498]** **R.F.A.No.145/2018** ## **-:10:-** ii. **Jaswant Kaur v. Amrit Kaur (Smt.) and others [1977 KHC 447]** iii. **Natarajan v. Sree Narayana D.S.Trust [1995 KHC 399]** iv. **Bharpur Singh and Others v. Shamsher Singh [2009 KHC 4239]** v. **Ramesh Verma (D) tr. Lrs. v. Lajesh Saxena (D) by Lrs and Another [2016 KHC 6799]** vi. **Sabitha K.V. v. Satheesan K.V. and Others [ 2022 (1) KHC 9].** 6. This case will have to be decided on the question related to the genuineness of the Will. A genuine Will, also can be surmounted by suspicious circumstances in its making. If suspicious circumstances exist surrounding the Will, the onus is on the propounder to explain such suspicious circumstances. Nobody has a ## **R.F.A.No.145/2018** ## **-:11:-** case that Asok Kumar was not sound or was mentally and physically weak at the time of the alleged execution of the Will. The precise case of the plaintiff was that the Will is forged and fabricated. When a question related to fabrication or forgery of the Will arises for consideration, and once the propounder of the Will discharges the statutory duty of proving the Will in accordance with law, then the onus is on the party who claims it to be fabricated or forged to prove the same. It seems that the plaintiff filed an interlocutory application to send Ext.B1 for an expert opinion to compare it with the admitted signature of deceased Asok Kumar. The plaintiff, thereafter, did not pursue the application. If the plaintiff had serious doubt about the genuineness of the Will, nothing prevented her ## **R.F.A.No.145/2018** ## **-:12:-** from obtaining the expert opinion as to the signature of the deceased Asok Kumar in Ext.B1. On the other hand, the plaintiff admitted the signature of Asok Kumar when she was cross-examined. She was shown Ext.B1 and she admitted his signature therein. An attempt was made in re-examination to clarify her admission by eliciting leading questions which was objected to by the learned counsel for the defendants. However, she explained that she had a problem related to eyesight and she requires magnifying glass to examine records. It is to be noted, in para.12 of the chief examination, the plaintiff asserted that she is a retired teacher and, mentally agile and alert. It cannot be said that she was ignorant or misled when she was shown Ext.B1 to confirm the signature of deceased Asok Kumar. No suspicious circumstances surrounding ## **R.F.A.No.145/2018** ## **-:13:-** Ext.B1 Will were pointed out to exist at the time of its execution. The circumstances pointed out subsequent to the alleged execution of the Will, only to relate to the claim of genuineness of the Will. 7. The Interlocutory Application No.3687/2017 filed by the plaintiff was closed by the plaintiff for the best reason known to them reserving liberty to move again if necessary at a later stage. DW2 and DW3 proved the Will. They were thoroughly cross-examined in the matter. Nothing has been brought out to discredit their testimony. Both admitted, the signature of Asok Kumar and deposed that Asok Kumar signed the Will in their presence. According to DW3, it is he who suggested to Asok Kumar to write a Will. DW3 had an acquaintance with Asok Kumar, as he had a shop in front of the oil mill run by Asok Kumar. ## **R.F.A.No.145/2018** ## **-:14:-** DW3 deposed that when Asok Kumar had chest pain, he advised writing the Will in favour of the children or the wife of Asok Kumar. DW3 also suggested to him to register the Will. There is nothing unusual in the testimony of DW3. DW2 deposed that he had written the Will as instructed by Asok Kumar. He also deposed that Asok Kumar had chest pain and he had consulted doctors at Indira Gandhi Hospital. DW2 and DW3 are independent witnesses who had acquaintance with Asok Kumar. There is no reason for them to have undue interest in this matter. As already noted, this is a case where the Will was disputed on the genuineness, alleging that it is a fabricated one. There is no whisper of suspicious circumstances leading to doubt the genuineness of the Will. The plaintiff admitted the signature in the Will. There is no scope for ## **R.F.A.No.145/2018** ## **-:15:-** doubting the authenticity of the signature of Asok Kumar since the Will has been proven to the satisfaction of the court. We find no merit in this appeal and the appeal is only to be dismissed. Accordingly, it is dismissed. No costs. Sd/- ## **A.MUHAMED MUSTAQUE, JUDGE** Sd/- **SHOBA ANNAMMA EAPEN, JUDGE** ## **ms**