Pauloose alias Paily v. Benny Varghese and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH** **TUESDAY, THE 24TH DAY OF JULY 2012/2ND SRAVANA 1934** ## **RSA.No. 1163 of 2011 ( )** **------------------------** **AS.39/2008 of SUB COURT, MUVATTUPUZHA OS.489/2005 of MUNSIFF COURT,MUVATTUPUZHA** ## **APPELLANT(S)/APPELLANT: ----------------------** **PAULOSE ALIAS PAILY, AGED 66 YEARS, SON OF VARKEY, RESIDING AT EDAPPATTU HOUSE, KOOVALLOOR KARA POTHANICAD VILLAGE, MOOVATTUPUZHA.** **BY ADVS.SRI.LEO GEORGE** **SRI.K.N.SASIDHARAN NAIR SMT.BABITHA THAMBI** ## **RESPONDENT(S):** - **--------------** **1. BENNY VARGHESE, S/O.VARKEY, AGED 49 YEARS, EDAPPATTU HOUSE, POTHANICAD KARA POTHANIVAD VILLAGE, REPRESENTED BY POWER OF ATTORNEY HOLDER V.P.JOHN, S/O.PAILY, AGED 51 YEARS VALLIPARAMBIL HOUSE, KOOVALLOOR KARA, POTHANICAD VILLAGE, POTHANICAD P.O.-685569.** **2. SOOSAN, W/O.MATHAI, AGED ABOUT 66 YEARS, EDAPPATTU HOUSE KOOVALLOOR KARA, POTHANICAD VILLAGE POTHANICAD P.O.-685569.** **3. SHALINI, D/O.MATHAI, AGED ABOUT 43 YEARS, EDAPPATTU HOUSE KOOVALLOOR KARA, POTHANICAD VILLAGE POTHANICAD P.O.-685569.** **4. SHAJAN, S/O.MATHAI, AGED ABOUT 4O YEARS, EDAPPATTU HOUSE KOOVALLOOR KARA, POTHANICAD VILLAGE POTHANICAD P.O.-685569.** **5. VARKEY @ BABY, S/O.VARKEY, AGED 49 YEARS, EDAPPATTU HOUSE, KOOVALLOOR KARA POTHANICAD VILLAGE,POTHANICAD P.O.-685569.** **6. ABRAHAM, S/O.VARKEY,** **AGED 65 YEARS, EDAPPATTU HOUSE, KOOVALLOOR KARA POTHANICAD VILLAGE,POTHANICAD P.O.-685569.** **7. AJI, S/O.IYPE, AGED ABOUT 34 YEARS, EDAPPATTU HOUSE, KOOVALLOOR KARA POTHANICAD VILLAGE,POTHANICAD P.O.-685569.** **8. BIJI, D/O.IYPE, AGED ABOUT 31 YEARS, EDAPPATTU HOUSE, KOOVALLOOR KARA POTHANICAD VILLAGE,POTHANICAD P.O.-685569.** **9. SIJI, S/O.IYPE, AGED 28 YEARS, EDAPPATTU HOUSE, KOOVALLOOR KARA POTHANICAD VILLAGE, POTHANICAD P.O.-685569.** **10. DIJI, D/O.IYPE, AGED 26 YEARS, EDAPPATTU HOUSE, KOOVALLOOR KARA POTHANICAD VILLAGE,POTHANICAD P.O.-685569.** **11. MARY @ KUNJAMMA, W/O.CHERIYAN, AGED ABOUT 58 YEARS, MANGALASSERIL HOUSE AYAVANA KARA, ENANALLOOR VILLAGE, POTHANICAD P.O.-685569.** **12. DAISY, W/O.MATHEW, AGED ABOUT 57 YEARS, MATTAMANA HOUSE, KRARIYELI KARA VENGOOR VILLAGE, POTHANICAD P.O.-685569.** **R1 BY ADV. SRI.S.VINOD BHAT BY ADV. SRI.LEGITH T.KOTTAKKAL** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 24-07-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **THOMAS P. JOSEPH, J.** -------------------------------------------------R.S.A No.1163 of 2011 --------------------------------------------------Dated this the 24[th] day of July, 2012 ## JUDGMENT The second appeal is brought by the 5[th] defendant against the decree for fixation of boundary, prohibitory injunction and recovery of damages to the tune of Rs.9,000/-. 2. The first respondent/plaintiff filed O.S.No.489 of 2005 in the Munsiff's Court, Muvattupuzha originally for fixation of boundary and prohibitory injunction. He claimed that 2.58 acres belonged to Sosamma, mother of the appellant/5[th] defendant, first respondent/plaintiff and others. The said Sosamma executed Ext.A2, registered Will dated 02/09/1997 bequeathing item No.1 of the plaint schedule-104.5 cents to the first respondent. The rest of the property belonging to her was bequeathed in favour of her other children. First respondent/plaintiff alleged that the appellant and others are attempting to trespass into the suit property. Later, alleging that the appellant and others committed mischief in the suit property, plaint was amended to incorporate a prayer for recovery of Rs.14,000/- by way of damages. 3. Appellant resisted the suit challenging Ext.A2, registered Will as not executed by the late Sosamma and that at any rate, it was fraudulently got executed. He contended that at the time Ext.A2 was R.S.A No.1163 of 2011 2 allegedly executed, Sosamma was not having sound disposing state of mind to understand things and make a disposition. A further contention appellant has raised is that by virtue of Ext.B2, agreement dated 25/10/1985 he is in possession of the suit property and at any rate, is entitled to the value of improvements he has effected. 4. The 12[th] defendant supported the first respondent/plaintiff but made a counter claim for fixation of boundary. She however did not challenge the judgment and decree of the trial court dismissing the counter claim. 5. The trial court found against due execution and attestation of Ext.A2, and dismissed the suit. On appeal at the instance of the first respondent, the learned Sub Judge reversed the finding of the trial court, held in favour of due execution and attestation of Ext.A2, found that the first respondent has acquired title and possession of suit property by virtue of the bequest under Ext.A2, fixed boundary of the property as per Ext.C3(a) and granted decree for prohibitory injunction and recovery of damages to the tune of Rs.9,000/-. Hence this second appeal. 6. The learned counsel for the appellant/5[th] defendant (who is a son of the deceased Sosamma) has contended that the first respondent was not able to remove the cloud of suspicion surrounding the due execution and attestation of Ext.A2. It is contended that the R.S.A No.1163 of 2011 3 evidence would show that Sosamma was not in sound disposing state of mind or even health to execute a document like Ext.A2 understanding its contents. Sosamma had 8 children living at the time of Ext.A2, but, it would appear from Ext.A2 that almost a half of the entire property belonging to her was bequeathed in favour of the first respondent. The inequitable division is itself a suspicious circumstance. It is argued by the learned counsel that the evidence of Pws.2, 3 and 6 examined by the first respondent to prove due execution, attestation and registration of Ext.A2 is contradictory and unreliable. The learned counsel also pointed out that evidence of PW2 who claimed to be an attester in Ext.A2 would not show that he attested Ext.A2 in the presence of the executant as required under Section 63(c) of the Indian Succession Act (for short 'the Act'). In the circumstances, the first appellate court was wrong in reversing finding of the trial court as to the execution and attestation of Ext.A2, it is contended. 7. The further argument the learned counsel has advanced is that at any rate, the decree for prohibitory injunction granted by the first appellate court as if the first respondent is in possession of the suit property is erroneous since Ext.B2 would show that right from 25/10/1985 on wards the appellant has been-and still is in possession of the suit property. In such a situation, the appropriate relief the R.S.A No.1163 of 2011 4 first respondent should have asked for was recovery of possession with opportunity to the appellant to resist that prayer on appropriate grounds. Lastly, it is argued that the first appellate court was not right in refusing value of improvements effected by the appellant in the suit property on the strength of Ext.B2. 8. The learned counsel who took notice for the first respondent plaintiff contended that the due execution, attestation and registration of Ext.A2 is proved by the evidence of Pws.2, 3, and 6. The finding of the trial court in that regard is erroneous as rightly found by the first appellate court. It is contended that there is no discrepancy in the evidence of Pws.2, 3, and 6 regarding the due execution, attestation and registration of Ext.A2. It is also contended that even if it be so, the mere inequitable division of property is no ground to suspect the due execution, attestation and registration of Ext.A2. 9. As regards possession of suit property, it is argued that Ext.B2 cannot be treated as a lease arrangement for the simple reason that it is unregistered notwithstanding that it is executed for a period more than 11 months. It is contended that Ext.B2 can only be understood as a licence which enabled the appellant to effect improvements in the property and take the yield and for that purpose, he was given possession of the property. In that view of the matter, after the death of the executant, Ext.B2, has no life and thereafter the appellant could 5 R.S.A No.1163 of 2011 not claim to be in possession of the property. 10. So far as the due execution, attestation and registration of Ext.A2 is concerned, PW2, one of the attestors, PW3, the scribe and PW6 the sub Registrar have given evidence. PW2, it is admitted is an uncle of the first respondent. But, that qualification must apply equally to the appellant also since the appellant is the brother of the first respondent. 11. The evidence of PWs.2, 3 and 6 would show that the execution, attestation and registration of Ext.A2 was at the residence of the executant, Sosamma. It is not very much in dispute that at that time Sosamma was suffering from a stroke. Obviously for that reason, she did not venture to go to the office of the scribe or the Sub Registrar. The evidence of Pws.2 and 3 would show that PW3, the scribe had been to the house of Sosamma where he prepared draft, it was read over and explained to Sosamma and based on that, PW3 prepared the original Will, it was executed and attested at the residence of Sosamma and later, PW6 was summoned to the residence of Sosamma for its registration. Though, the learned counsel for the appellant addressed arguments that there is discrepancy in the evidence of PWs 2, 3 and 6, on going through a copy of deposition of those witnesses, I do not find any material discrepancy or contradiction affecting their evidence regarding due execution, R.S.A No.1163 of 2011 6 attestation and registration of Ext.A2. Though it is pleaded by the appellant that Sosamma, on account of stroke was unable to talk or understand things, evidence of PW2 and 3 is that though, she was not able to talk freely, she was able to express her ideas by talk as well as by jesters. It is also to be born in mind version of the appellant as DW2 that during 1997, he had paid Rs.1,000/- to Sosamma (as recited in Ext.B2). Therefore, even on the showing of the appellant it was not as if Sosamma was incapable of understanding things. What is required and expected is sound mind and not sound health. 12. It is pointed out by the learned counsel that if the version of PWs.2 and 3 is that Sosamma was not able to talk in the ordinary manner, PW6 has stated that she had talked to him for about half an hour. I find from the evidence of PW6 that what he stated is that he had talked to Sosamma for about 4-5 minutes. To a question whether Sosamma was able to talk in the normal way during that time, PW6 stated that he does not remember that. That version of PW6 cannot be taken as a contradiction to the version of Pws.2 and 3. 13. Yet another argument the learned counsel has raised is that PW2, the attester has not stated that at the time he attested ExtA2, Sosamma was present. It is in this connection that learned counsel has invited my attention to Section 63(c) of the Act. 14. True, that said provision says that attestation, unless it is a R.S.A No.1163 of 2011 7 case of the attester receiving a personal acknowledgment of the signature of the executant should be in the presence of the executant. But, to decide whether PW2 attested the document in the presence of Sosamma, evidence of PW2 should be read as a whole. On reading the evidence of PW2 what I understand is that the execution and attestation of the document was at the residence of Sosamma, PW2 was present at that time and Sosamma signed the document in his presence. If that be so, merely for the reason of PW2 not stating that he attested Ext.A2 in the presence of Sosamma, I find myself unable to accept the contention of the learned counsel for the appellant. 15. I must also find from the decision in Venkatachala v. Thimmajamma (AIR 1959 SC 443) that even proof of Will need not be by arithmetical rescission. Proof required for the Will is as in the case of proof of any other document. No doubt, if there are suspicious circumstances surrounding the due execution of the Will, it has cleared by the propounder. 16. In this case, the one suspicious circumstance that the learned counsel for the appellant has pointed out is what he called the inequitable bequest as per Ext.A2. It is pointed out that the entire extent belonging to Sosamma was only 2.19 acres while under Ext.A2 she has bequeathed 104.5 cents to the first respondent. 17. The various authoritative pronouncements inform me that R.S.A No.1163 of 2011 8 the mere unequal distribution is not by itself a suspicious circumstance. What is a suspicious circumstance is described, though not exhaustively in **Pappoo v. Kuruvilla (1994 (2) KLT 278)** a circumstances will be suspicious if, having regard to the normal circumstances one would not expect the testator to do so. I do not find any such suspicious circumstance in this case. 18. I must also notice that though, registration by itself is not evidence of due execution or attestation of the instrument, that gives credence to the evidence let in as to the due execution and attestation. That is because, the registering authority before registering the document is required to comply with the statutory requirements under Section 60 of the Indian Registration Act which includes an enquiry with the executant as to its execution. Section 59 of the Registration Act provides for an endorsement by the registering authority on the document as to its registration. That endorsement is prima facie evidence of compliance with the statutory requirements with the registering authority is required to. It is not disputed that Ext.A2 contains that endorsement. That is prima facie evidence of the registering authority complying with the statutory requirements he had to perform before registration. There is also the evidence of PW6. Thus the fact of registration also lends support to the evidence of Pws.2 and 3 as to the due execution, and attestation of the Will. R.S.A No.1163 of 2011 9 19. In the light of above, I do not find any infirmity or perversity in the finding regarding the due execution, attestation and registration of Ext.A2. 20. Then the question is whether the first appellate court was right in granting a decree for prohibitory injunction? It is contended that by virtue of Ext.B2, appellant is in possession of the property. I am given a copy of Ext.B2 for perusal. That document, unregistered, says that Sosamma has allowed the appellant to effect improvements in the 2.58 acres belonging to her and take the yield for the consideration mentioned therein. The appellant has no case that Ext.B2 is a lease arrangement nor I am inclined to think so for various reasons including the recitals in Ext.B2 and, the fact that notwithstanding that it is for a period of more than 11 months it is unregistered. If that be so, Ext.B2 can only be understood as a permission granted by the owner of the property to the appellant to effect cultivations in the property and take the yield. That permission should end by the death of the granter. 21. I must also understand what is mean by the expression 'possession'. In **Anies v. Rapai (1986 KLT 1204)** it is held that possession means the physical possibility of person dealing with property as he likes, and it also implies some actual power over the object possessed and some amount of Will to avail oneself of that R.S.A No.1163 of 2011 10 power. I am unable to understand from Ex.B2 that appellant was entitled to deal with the property as he liked even to the exclusion of the grantor, the late Sosamma. Therefore, the recitals in Ext.B2 cannot be taken as showing that appellant was having 'possession' of the property as understood under law so that the first respondent was obliged to bring a suit for recovery of possession. That contention of the appellant has also to fail. 22. The last argument is concerning damages awarded by the first appellate court and the refusal to allow value of improvements to the appellants. The second part of the claim is based on Ext.B2. Ext B2 says that if after the death of the testator the property she has referred to in Ext.B2 survives, it shall be inherited by the legal heirs, in equal proportion and that the appellant shall be entitled to contribution for the value of improvements from the other legal heirs. That recital has no validity or binding force since the property did not survive after the death of the testator in view of Ext.A2. 23. Moreover, appellant did not make any counter claim for value of improvements. Nor was any attempt to made to assess the value of improvements if any payable. 24. The learned counsel for the first respondent after getting instructions from his client has submitted that first respondent is prepared to give up the decree for recovery of Rs.9,000/- (Rupees nine R.S.A No.1163 of 2011 11 thousand only) by way of damages. I am inclined, that is a fair concession made by the first respondent having regard to the close relationship between the parties. Giving up of the claim for damages would in my view be sufficient solace for the appellant who claimed value of improvements (though legally he was not entitled to that). 25. I have heard the learned counsel for the appellant and the first respondent. I have also gone through the judgment of the first appellate court as also the copy of depositions and Exts.A2 and B2 given to me for perusal. I find that no substantial question of law is involved. 26. The submission made by the learned counsel for the first respondent that the claim for recovery of damages is given up is recorded and to that extend, the decree of fist appellate court stand modified. Resultantly, the second appeal is disposed of as under; 1. The judgment and decree of the first appellate court except to the extend it concerned recovery of damages to the tune of Rs.9,000/- (Rupees nine thousand only) from the appellant is confirmed. 2. In the light of the concession made by the first respondent through counsel and recorded above, the decree for recovery of damages will stand set aside. R.S.A No.1163 of 2011 12 3. In other respects, judgment and decree of the First Appellate Court will stand. Parties shall suffer their respective cost in this appeal. **THOMAS P. JOSEPH, JUDGE** mns