Padmavathy Amma and Sulochana v. Thottoli Meethal Chirutha and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **WEDNESDAY, THE 26[TH] DAY OF OCTOBER 2022 / 4TH KARTHIKA, 1944** **RSA NO. 901 OF 2006** **AGAINST THE JUDGMENT IN AS 213/2004 OF 1ST ADDITIONAL DISTRICT COURT,** **KOZHIKODE** **OS 36/1997 OF SUB COURT, VADAKARA** **-----** ## **APPELLANTS/APPELLANTS/PLAINTIFFS:** 1 PADMAVATHY AMMA, W/O KUNHIRAMAN, RESIDING AT NEKLI HOUSE, UDMA PANCHAYATH, MAYILATTY P.O., HOSDURG TALUK, KASARAGOD DISTRICT. 2 SULOCHANA, D/O.KUNHIRAMAN, RESIDING AT DO. DO. BY ADVS. SRI.T.P.KELU NAMBIAR (SR.) SRI.M.GOPIKRISHNAN NAMBIAR SRI.P.G.RAJAGOPALAN ## **RESPONDENTS/RESPONDENTS 1, 2 AND 4 TO 12/DEFENDANTS 2, 3 AND 5 TO 10 AND THE LEGAL REPRESENTATION OF THE 4TH DEFENDANT:** 1 THOTTOLI MEETHAL CHIRUTHA RESIDING AT NADAKKUTHAZHAM AMSOM, MEPPAYIL DESOM, P.O.MEPPAYIL, VATAKARA TALUK, KOZHIKODE DISTRICT. 2 PANDARAPARAMBIL KUTTOOLI, W/O.KORAN, RESIDING AT KOTTOOLI AMSOM, PARAYANCHERI DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT. 3 THOTTOLI MEETHAL BHASKARAN, RESIDING AT NADAKKUTHAZHA AMSOM, MEPPAYIL DESOM, P.O.MEPPAYIL,, VATAKARA TALUK, KOZHIKODE DISTRICT. ## **RSA NO. 901 OF 2006 -2-** - 4 -DO- MADHAVI RESIDING AT DO. DO. 5 -DO- JANU RESIDING AT DO. DO. 6 -DO- SARADA RESIDING AT DO. DO. 7 -DO- KAMALA RESIDING AT DO. DO. 8 -DO- GOPALAN RESIDING AT DO. DO. 9 NARAYANI, W/O.DAMODHARAN, RESIDING AT PANDARAPARAMBIL, KOTTOOLI AMSOM, PARAYANCHERI DESOM, P.O.PUTHIYAPALAM, KOZHIKODE TALUK, KOZHIKODE DISTRICT. - 10 SHYAM SAJITH, S/O.DAMODHARAN RESIDING AT DO. DO. - 11 SNEHAJA, D/O.DAMODARAN RESIDING AT DO. DO. BY ADVS. SRI.K.RAKESH ROSHAN SMT.THUSHARA.V SRI.C.VALSALAN THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 26.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **SATHISH NINAN, J.** **= = = = = = = = = = = = = = = = = = R.S.A. No.901 of 2006** **= = = = = = = = = = = = = = = = = = Dated this the 26[th] day of October, 2022** ## **J U D G M E N T** The suit for partition, was concurrently dismissed by the courts. The plaintiffs are in appeal. 2. The plaint schedule property originally belonged to one Kannan. He died in the year 1955. The first defendant is his widow. They had three children – Koran, Kunhiraman and Chirutha-second defendant. Plaintiffs are the wife and daughter of late Kunhiraman. Defendants 3 and 4 are the wife and son of Koran, who had predeceased Kannan. According to the plaintiffs, as per a Will executed by Kannan, the property devolved on Kunhiraman, Kalyani and Chirutha. On the death of Kunhiraman, plaintiffs seek for partition and separate possession of the rights of Kunhiraman. Defendants 1 and 2 challenged the claim for partition relying on Ext.B5 Will dated 10.12.1981 executed by Kunhiraman. They also disputed the status of the plaintiffs as the wife and daughter of ## **R.S.A. No.901 of 2006** -: 2 :- late Kunhiraman. A plea of adverse possession was also urged. 3. The suit was originally dismissed by the trial court. The first appellate court set aside the decree and judgment, and held that the plaintiffs are the wife and daughter of Kunhiraman. The plea of adverse possession was negatived. The matter was remanded back to the trial court for fresh disposal. 4. After remand the trial court upheld the WillExt.B5 and dismissed the suit. The lower appellate court concurred with the findings of the trial court. 5. Heard Sri.M.Gopikrishnan Nambiar, learned counsel for the appellants-plaintiffs and Sri.C. Valsalan, the learned counsel for the contesting respondents-defendants 1 and 2 on the following substantial questions of law:- _(i) Did the courts err in not drawing adverse inference_ _against defendants consequent on their abstaining from the witness box ?_ **R.S.A. No.901 of 2006** -: 3 :- _(ii) Were the courts right in upholding Ext.B5 Will after finding that the attestors to the Will are persons interested in the disposition ?_ _(iii) Is the disinheritance of the plaintiffs-the wife and only child of Kunhiraman, a suspicious circumstance against the Will ?_ _(iv) Were the courts right in having relied on the report of the finger print expert-Ext.C1 without examining the expert?_ 6. The defendants allege that Kunhiraman was suffering from mental illness and was incompetent to execute Ext.B5 Will. As noticed by the courts, there is total lack of material to find that Kunhiraman was suffering from any mental illness. They do not even have a case that he was being treated at any hospital for the alleged mental illness. PW1 has admitted that Kunhiraman along with defendants 1 and 2 had executed Ext.B3 Partition Deed on 18.12.1978 and possessed property based on the same. The very fact of execution of Ext.B3 ## **R.S.A. No.901 of 2006** -: 4 :- Partition Deed and its admission by PW1 strikes at the root of the plaintiffs' case regarding mental incapacity of Kunhiraman to execute Ext.B5 Will. This is coupled with the lack of any material to prove the alleged illness. It could not be said that by non-examination of defendants 1 and 2 any material were withheld. The challenge against Ext.B5 Will on the ground of alleged mental illness of Kunhiraman is sufficiently disproved and thus, is negatived. Substantial question of law (i) is answered accordingly. 7. To prove the Will, the plaintiff examined DWs.1 to 3. DWs.1 and 3 are the attestors to the Will. They are the husband of the second defendant and the son of the first defendant, respectively. Defendants 1 and 2 are the legatees under the Will. But will that by itself be a ground to hold against the Will if the materials on record prove that the Will is genuine. DW1 and DW3 being the attestors, that could be a suspicious circumstance. Suspicious circumstance, if any, consequent on DW1 and ## **R.S.A. No.901 of 2006** -: 5 :- DW3 being testators have been sufficiently wiped away the other materials and circumstances in the case. In _**Sathyanarayana v. Seetharatnam [2005 (4) KLT SN 109],**_ Apex Court held that active participation in the execution of the Will by the propounders or beneficiaries is not by itself sufficient to create doubt regarding testamentary capacity or genuineness of the Will. _[Also see_ _**Ramabai Padmakar Patil (D) through Lrs. and others v. Rukiminibaul Vishnu Vekhande and Others 2003 SAR (Civil) 685** ]_ . Both DW1 and DW3 have deposed regarding execution and attestation of the Will in terms of Section 68 of the Indian Evidence Act. DW2 is the scribe. He has also deposed about the preparation of the Will on instructions of Kunhiraman, that Kunhiraman was hail and healthy and had sound disposing state of mind at that time. The trial court as well as the first appellate court analysed the evidence of DWs.1 to 3 in detail and found their evidence to be reliable and acceptable. No circumstance could be brought to the notice of this court to dislodge the said ## **R.S.A. No.901 of 2006** -: 6 :- finding. The challenge against the Will on the said ground is thus, negatived. Substantial question of law (ii) is answered accordingly. 8. The learned counsel for the appellant would then contend that, disinheritance of the wife and the only daughter of Kunhiraman is highly suspicious, which should have been appreciated by the courts to hold against the Will. In fact, both the courts have taken note of the disinheritance of the wife and child under Ext.B5 Will. It was noticed that there was sufficient reason upon which Kunhiraman sought to disinherit them. Even as per the plaint averments, Kunhiraman was not residing with his wife and child since the year 1960. Kunhiraman resided with them only for a period of five years after his marriage in the year 1955. The said fact is admitted by PW1. Even going by the evidence of PW1, Kunhiraman had not visited his wife-the first plaintiff subsequent to 1974. Kunhiraman was residing with his sisters. The disinheritance alleged is thus explained by ## **R.S.A. No.901 of 2006** -: 7 :- circumstances. Therefore, it cannot be taken as a suspicious circumstance against the Will. The substantial question of law (iii) is thus answered in favour of the appellants. 9. The thumb impression of Kunhiraman in Ext.B5 Will was sent for expert opinion. The same was compared with the admitted documents and the thumb impression in the admitted document Ext.B3, a Partition Deed of the year 1978. Kunhiraman was party No.2 in Ext.B3 Partition Deed. Ext.C1 is the expert's report vouching that the thumb impression in Ext.B3 Partition Deed and Ext.B5 Will are one and the same. The learned counsel for the appellant would challenge the course adopted by the courts in having accepted and relied on the expert opinion without examination of the expert. Order XXVI Rule 10A read with Rule 10(2) of the Code of Civil Procedure makes it clear that, the report of the expert will form part of the record. In a given case, whether the report needs to be corroborated before it is ## **R.S.A. No.901 of 2006** -: 8 :- accepted and relied on, is a matter of prudence for the court to adopt depending on the circumstances obtaining in each case. Dealing with expert opinions on handwriting and thumb impression, it has been held that since the opinion on handwriting is not an exact science it would be prudent to require examination of the expert. However, thumb impression being an exact science, the report could be accepted and relied on even without any further corroboration. _[See_ _**Parukkutty Amma & Another v. Thankam Amma & Others 2004 (1) KLT 991, Kannan v. Nanu, (1989) 2 KLT 288** ]_ . In the case at hand as noticed supra, the due execution of Ext.B5 Will has been proved by the evidence of DWs.1 to 3. The reports of the experts – Ext.C1 only supplements the evidence already on record. The courts could not have been faulted in having relied on the same without examining the experts. If the plaintiffs disputed the correctness of the report, it was always open for them to examine the expert in terms of Order XXVI Rule 10(2) of the Code of Civil Procedure **R.S.A. No.901 of 2006** -: 9 :- and disprove the report. They having not adopted such a course, it is not open for them at this stage, to contend that, the report should not have been accepted. Substantial question of law (iv) is answered accordingly. 10. The courts were right in their finding upholding Ext.B5 Will and consequently dismissing the suit. The appeal lacks merit and the same is dismissed. Sd/- **SATHISH NINAN JUDGE** kns/- //True Copy// P.S. to Judge