Ramani and Others v. N.K. Leela and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **FRIDAY, THE 14[TH] DAY OF JULY 2023 / 23RD ASHADHA, 1945** **RFA NO. 873 OF 2013** **AGAINST THE JUDGMENT AND DECREE IN OS NO.999/2010 OF III ADDL. SUB COURT, KOZHIKODE** **-----** ## **APPELLANTS/DEFENDANTS:** 1 RAMANI, W/O KRISHNAN, PUTHUSSERY HOUSE, NELLIKODE AMSOM, DESOM (P.O), KOZHIKODE TALUK. 2 REESH, S/O KRISHNAN, PUTHUSSERY HOUSE, NELLIKODE AMSOM, DESOM (P.O), KOZHIKODE TALUK. 3 SAJEESH, S/O KRISHNAN, PUTHUSSERY HOUSE, NELLIKODE AMSOM, DESOM (P.O), KOZHIKODE TALUK. 4 RAJEESH, S/O KRISHNAN, PUTHUSSERY HOUSE, NELLIKODE AMSOM, DESOM (P.O), KOZHIKODE TALUK. BY ADVS. R.BINDU (SASTHAMANGALAM) SRI.PRASANTH M.P T.KRISHNANUNNI (SR.) ## **RESPONDENTS/PLAINTIFFS:** 1 N.K. LEELA, ***[1 ] [DIED; ADDL. R16 TO R22 IMPLEADED AS LRs.]** D/O CHOYIKUTTY, AGED 78 YEARS, AALELATHAZHAM, KOTTOOLY AMSOM, DESOM, KOZHIKODE TALUK, PIN:673 016. **RFA NO. 873 OF 2013** -: 2 :- 2 P.NARAYANI, ***[2 ] [DIED; ADDL. R5 TO R11 IMPLEADED AS LRs]** D/O CHOYIKUTTY, AGED 77 YEARS, PAARAKKAL HOUSE, KOTTOLY AMSOM DESOM, KOZHIKODE TALUK, PIN -673 016. 3 K.MADHAVI, D/O CHOYIKUTTY, AGED 75 YEARS, NEDUMBARAMBUKUNNU, PERUVAYAL AMSOM, VELLIPARAMBA DESOM, KOZHIKODE TALUK, PIN:673 024. 4 SATHEEDEVI, D/O CHOYIKUTTY, AGED 64 YEARS, THUVVASSERY HOUSE, NEAR KOPRAPALLI, OLAVANNA AMSOM, DESOM, KOZHIKODE TALUK, PIN:673 025. ## ***[2] ADDL. R5 TO R11** ADDL.R5 P.SURESH BABU, ***[3 ] [DIED; ADDL. R12 TO R15 IMPLEADED AS LRs]** AGED 59, SON OF KANARAN, PARAKKAL HOUSE, KOTTOOLY (P.O.) KOZHIKODE. ADDL.R6 P.BABY, AGED 56, W/O.JINACHANDRAN, AYANIPULLI VATTOLATH HOUSE, MANKAVU (P.O.) KOZHIKODE. ADDL.R7 P.SOBHANA, W/O.PRABHAKARAN, CHAKRAPURATH HOUSE NELLIKKODE, KOZHIKODE. ADDL.R8 ANITHA AGED 49, W/O.PRAKASHAN, CHETTIKANDI HOUSE, WEST HILL (P.O.) KOZHIKODE. ADDL.R9 P.SUNITHAN, AGED 45, S/O.KANARAN, PARAKKAL HOUSE, KOTTOOLY (P.O.) KOZHIKODE. ADDL.R10 P.BINDU AGED 40, W/O.GIRISH KUMAR, MULLAMPOYIL HOUSE, KUTHIRAVATTOM (P.O.), KOZHIKODE. **RFA NO. 873 OF 2013** -: 3 :- ADDL.R11 P.SINDHU, AGED 38, W/O.SALIL KUMAR, PAIKKATTUKAVIL CHERUKUTTIPPURATH HOUSE, NELLIKKODE (P.O.) KOZHIKODE. ## ***[2] [LEGAL HEIRS OF THE DECEASED 2ND RESPONDENT ARE IMPLEADED IN THE PARTY ARRAY AS ADDL.R5 TO R11 VIDE ORDER DATED 23/01/19 IN IA 4/2019]** ## ***[3] ADDL. R12 TO R15** ADDL.R12 SUCHITHRA LATHIKA A., PARAKKAL HOUSE, KOTTOOLY (P.O), KOZHIKODE- 673 016. ADDL.R13 SHABEENA P., W/O.PRASOBH M.M. VENGALATH HOUSE, NELLIKODE (P.O), KOZHIKODE 673 016. ADDL.R14 SHIJINA P., W/O.BINILESH N.P.,MANDANKAVU (P.O.) NADUVANNUR, KOZHIKODE-673614 ADDL.R15 SHIKHINA.P., W/O.BINEESH M.K., MOORTHIKAVIL HOUSE, CHEVAYUR (P.O) KOZHIKODE- 673017 ## ***[3] [THE LEGAL HEIRS OF THE DECEASED ADDITIONAL 5TH RESPONDENT ARE IMPLEADED IN THE PARTY ARRAY AS ADDL.R12 TO R15 VIDE ORDER DATED 22/07/19 IN IA 6/19.]** ## ***[1] ADDL. R16 TO R22** ADDL.R16 PRASANNA, AGED 67 YEARS, D/O.RARICHAN, W/O.LATE RAGHAVAN, MANJALATHATTU HOUSE, CHERUKARA MEETHAL,OLAVANNA, KOZHIKODE-673019. ADDL.R17 KANJANA, AGED 65 YEARS, D/O.RARICHAN, W/O.VELAYUDHAN, KUZHIPPALLY HOUSE, PUTHOOR MADAM, PERUMANNA, KOZHIKODE 673 019 **RFA NO. 873 OF 2013** -: 4 :- ADDL.R18 VIJAYAN, AGED 63 YEARS, S/O.RARICHAN, ALENATHAZHAM, KOTTULI, KOZHIKODE, PIN- 673 016. ADDL.R19 REMADEVI, AGED 59 YEARS, D/O.RARICHAN, ALENATHAZHAM, KOTTULI, KOZHIKODE, PIN-673 016 ADDL.R20 GEETHA, AGED 55 YEARS, D/O.RARICHAN, W/O.MOHANAN DAS, PAYYADITHARA HOUSE, VELLIPRAMBU, KUTTIKATTOOR, KOZHIKODE, PIN -673008 ADDL.R21 GANESAN, AGED 53 YEARS, S/O.RARICHAN, ALENATHAZHAM, KOTTULI, KOZHIKODE, PIN-673 016 ADDL.R22 BINDU, AGED 46 YEARS, D/O.RARICHAN, W/O.LATE SAJEEV KUMAR, ALENATHAZHAM, KOTTULI, KOZHIKODE, PIN-673 016. ***[1] [LEGAL HEIRS OF DECEASED R1 ARE IMPLEADED IN THE PARTY ARRAY AS ADDITIONAL RESPONDENTS 16 TO 22, VIDE ORDER DATED 14/9/2022 IN IA 1/2022.]** BY ADVS. SRI.K.S.MADHUSOODHANAN SRI.K.S.MIZVER SRI.P.K.RAKESH KUMAR SRI.THOMAS CHAZHUKKARAN SRI.M.M.VINOD KUMAR THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON 14.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **SATHISH NINAN, J.** **= = = = = = = = = = = = = = = = = = RFA No.873 of 2013** **= = = = = = = = = = = = = = = = = = Dated this the 14[th] day of July, 2023** ## **J U D G M E N T** The preliminary decree in a suit for partition is under challenge by the defendants. 2. The plaint schedule consists of six items of properties. The plaintiffs are the daughters of one Choyikutty. Defendants 1 to 4 are the wife and children of late Krishnan, the brother of the plaintiffs and the son of Choyikutty. Choyikutty had a brother named Cheruttan @ Nayadi. In the year 1953, Choyikutty and Cheruttan @ Nayadi entered into Ext.B4 partition. In the partition, plaint schedule item Nos.1 to 5 were set apart to the share of Choyikutty. Plaint schedule item No.6 is the self-acquisition of Choyikutty. Choyikutty and his wife Janaki are no more. It is accordingly that the suit is filed for partition by the daughters, against the wife and children of their brother, late **RFA No.873 of 2013** -: 2 :- Krishnan. The plaintiffs claim one by five shares each. 3. Defendants contended that the plaint item Nos.1 to 5 are the ancestral properties of Choyikutty wherein, his son Krishnan got a share by birth. Therefore, half right over plaint schedule item Nos.1 to 5 vested with Krishnan, and the other half right with Choyikutty. Choyikutty died in the year 1979. On his death, his half right over plaint item Nos.1 to 5 devolved on the plaintiffs and Krishnan. The said half share alone is available for partition, it was contended. As regards the plaint schedule item No.6, which is the selfacquisition of Choyikutty, it was contended that he had executed Ext.X1 Will dated 03.01.1976 bequeathing the property to Krishnan. 4. The trial court negatived the defence plea that plaint schedule item Nos.1 to 5 are ancestral properties. So also, Ext.X1 Will was held against. Accordingly, a decree for partition was passed declaring **RFA No.873 of 2013** -: 3 :- 1/5 share each of the plaintiffs', over the plaint schedule properties. It is challenging the same that this appeal has been filed. 5. Heard Sri.T.Krishnanunni on behalf of the appellants-defendants and Sri.K.S.Madhusoodanan and Sri.M.M. Vinod Kumar on behalf of the respondentsplaintiffs. 6. The following points arise for determination: - - _(1) Are plaint schedule item Nos.1 to 5 the ancestral_ - _properties of Choyikutty ?_ - _(2) Have the defendants proved the due execution of_ - _Ext.X1 Will?_ 7. Ext.B1 is the partition of the year 1916 between Kelu, the predecessor-in-interest of Choyikutty and the legal heirs of his brother Raarichan. Kelu and Raarichan were the sons of one Nayadi. For the sake of convenience and easy understanding the genealogical tree is given hereunder:- **RFA No.873 of 2013** -: 4 :- ## GENEALOGICAL TREE **==> picture [431 x 300] intentionally omitted <==** 8. In Ext.B1 partition of the year 1916, plaint schedule item Nos.1 and 2 were included and allotted to the share of Kelu. On the death of Kelu, Ext.B4 Partition Deed was executed between Choyikutty and his brother Rarichan @ Nayadi whereunder the said properties (plaint schedule item Nos.1 and 2) were set apart to Choyikutty. Therefore, it needs no further elaboration **RFA No.873 of 2013** -: 5 :- to find that plaint schedule item Nos.1 and 2 are ancestral properties at the hands of the Choyikutty. 9. As regards plaint schedule item No.3 it was obtained by Kelu, the predecessor of Choyikutty as per Ext.B2 registered kychit. Therefore, the said item is also ancestral property at the hands of the Choyikutty. 10. The learned counsel for the respondent would contend that in the light of the Hindu Succession (Amendment) Act, 2005, women are also coparceners and therefore, they are also entitled for share in the family property. The said contention has no force in the light of _**Babu v. Ayillalath Arunapriya, 2012 (4) KLT 487,**_ wherein this Court held that the amendment is only prospective in operation. In Kerala, consequent on the enactment of the Kerala Joint Hindu Family System (Abolition) Act, 1975, joint family and coparcenary does not exist after 01.12.1976 and the Amendment Act of 2005 does not have any application. **RFA No.873 of 2013** -: 6 :- 11. As regards the plaint item Nos.4 and 5, the said items were acquired jointly by Choyikutty and his brother Cheruttan @ Nayadi. There is no evidence to substantiate the plea that the acquisition was utilising income from joint family properties and that the income if any, was sufficient enough for such acquisition. Therefore, it has to be held that plaint schedule item Nos.4 and 5 are their self-acquisitions. 12. Relying on Ext.A2 to A4 land acquisition proceedings, the respondents would contend that equal rights of the plaintiffs over plaint schedule items 1 to 5 were recognised and admitted by the defendants and hence they cannot now claim it to be ancestral properties. Exts. A2 to A4 relates to acquisition of portions of item numbers 1 to 5 properties. Compensation for the same was shared equally between the parties. However, the land acquisition proceedings was not a reference on title but was only for enhancement of **RFA No.873 of 2013** -: 7 :- compensation. The inter se rights between the plaintiffs and defendants were not at all an issue there. The mere fact that the compensation was shared equally between the parties is of no consequence. There was no adjudication of the rights between the parties. Hence the same does not help the case of the plaintiff that the properties are self-acquisitions of Choyikutty and Cheruttan. 13. As regards plaint schedule item No.6, as noticed earlier there is no dispute that it is the selfacquisition of Choyikutty. The defendants challenge the claim for partition with regard to item 6 relying Ext.X1 Will dated 03.01.1976 executed by Choyikutty bequeathing the property in favour of his son Krishnan who is the predecessor-in-interest of the defendants. The availability of the said item depends on the finding regarding genuineness of the Will. **RFA No.873 of 2013** -: 8 :- 14. Having held that plaint item Nos.1 to 3 are ancestral properties at the hands of Choyikutty, his son Krishnan had one half right over the properties. On the death of Choyikutty in 1979 it is only his one half rights over the property that devolved on his legal heirs viz. 5 children. Therefore, the plaintiffs are entitled to get partition and separate possession of 4/5 shares of 1/2. 15. As regards plaint item Nos.4 and 5, since it belongs absolutely to Choyikutty, all the five children are entitled for equal shares. Hence the plaintiffs are entitled to partition and separate possession of 4/5 shares out of plaint item Nos.4 and 5. 16. Now I proceed to deal with the issue regarding proof of due execution of Ext.X1 Will. The Will is dated 03.01.1976. The testator Choyikutty died on 05.04.1979 that is more than three years after its execution. The original of the Will was mortgaged with the Kozhikode **RFA No.873 of 2013** -: 9 :- District Co-operative Bank. It was summoned by the Court and was returned after recording of the evidence, on retaining a copy. The plaintiff alleged that, Choyikutty did not have sound disposing state of mind at the time of execution of Ext.X1, his right side was paralysed, and also that, if at all Ext.X1 Will was executed by him, that was got executed under threat and coercion. Have the defendants succeeded in proving the due execution of the Will and dispelled the suspicious circumstances, is to be considered. 17. While appreciating the evidence on record with regard to execution of the Will and the dispelling of suspicious circumstances, it is relevant to bear in mind certain aspects. PW1, in his cross-examination, is categoric that the Will was caused to be executed by Choyikutty under threat and coercion. PW1 is specific in his answer that he had witnessed the incident. He has also deposed that Choyikutty was taken to the Sub **RFA No.873 of 2013** -: 10 :- Registry office in an autorickshaw and that he had signed at the SRO and that the PW1 was also present. He had also deposed that Velayudhan, who is one of the witnesses to the Will, has also signed it as a witness. The relevant deposition reads thus:- “Will tNm-bn-Ip-«n-sb `o-j-Wn-s¸-Sp-¯n H-¸n-«p-hm§n. A-Xp Rm³ I-¾p. Auto bnð tIän SRO ðsImï-v t]mbn. SRO bnð h-¨v H-¸n«p. Rm-\pw Dï-m-bn-cpóp. SRObnð h-¨v a-säm-cm-sf sImï-v H-¸n-Sp-hn¨p. A-Xp them-bp[-sâ H-¸mWv. Sn-bm³ will se km-£n-bmWv.” Therefore, the fact that Choyikutty had signed the Will is beyond dispute. His case is that it was caused to be executed by threat and coercion. The Will was executed on 03.01.1976. PW1 claimed to have been a witness to the act of threat and coercion and also to the registration of the Will at the Sub Registry Office. However, till the suit is filed in the year 2010, that is for a long period of 34 years there was no complaint raised with regard to the alleged act of threat and coercion and the **RFA No.873 of 2013** -: 11 :- execution of the Will. 18. Section 68 of the Evidence Act requires the execution of a Will to be proved by examining at least one of the attesting witnesses if any of them is alive. It is the case of the defendants that both the attesting witnesses of Ext.X1 Will are no more. Section 69 of the Evidence Act provides for the manner in which a Will could be proved when both the attesting witnesses are dead or not available. The section requires proof that, the attestation of one attesting witness at least is in his handwriting, and the signature of the executant is in his handwriting. The defendants seek to have Ext.X1 Will proved in terms of the said section. 19. As rightly contended by the learned counsel for the respondent, it is for the appellants to prove that the witnesses to the Will are no more and that they are entitled to have the Will proved in the manner as provided under section 69 above. **RFA No.873 of 2013** -: 12 :- 20. In the proof affidavit of PW1 regarding the witnesses to Ext.X1, it is sworn to thus, “km-£n-IÄ a-cn- ¨p Fóv ]-d-bpó-Xv I-f-hmWv”. He denied the defendants case that the witnesses are no more. DW1 is the son of Mammad Koya, one of the witnesses to the Will. He deposed that his father is no more. He identified the signature of his father. DW2 who was present at the time of execution of the Will has identified the signature of Choyikutty. DW3 is the second defendant. She has also deposed that the witnesses to the Will are no more. With regard to the demise of the father of DW1 who was a witness to the Will, the plaintiff as PW1, pleaded ignorance. When questioned about the other witness to the Will viz. Velayudhan, though he would say that he is alive, he would also depose that he has not seen him. Therefore, the statement that Velayudhan is alive, is **RFA No.873 of 2013** -: 13 :- without any basis. The fact that the father of DW1 was a witness to the Will is not challenged in the crossexamination of DW1. As rightly contended by the learned counsel for the respondent, the defendants could have taken out summons to the other witnesses to the Will viz. Velayudhan to prove that he is no more. They could have even produced the death certificate of Velayudhan. However, the said courses were not adopted. Still, that does not necessarily mean that the said witness is alive. As noticed above, the defence witnesses have deposed that the witnesses to the Will are no more. Even the plaintiff does not have a case that the said witnesses are available at any place or that he has seen them. If the said witnesses were alive, the plaintiff could very well have adduced some positive evidence. On the evidence it could be concluded that, the witnesses **RFA No.873 of 2013** -: 14 :- to the Will were no more. The defendants were entitled to have the Will proved in the manner as provided under Section 69 of the Evidence Act. The evidence of DWs1 and 2, as has been referred to earlier proves the execution of the Will in terms of the Section. 21. Though it is claimed that, Choyikutty did not have sound mental state of mind to execute the Will, that his right side was paralysed and that he was treated at the Medical College Hospital followed by indigenous medicine therapy, absolutely no evidence regarding the same is produced. If he was treated at the Medical College Hospital and his right side was paralysed, definitely there would have been some evidence with regard to the same. That apart, as noticed supra, it is the case of PW1 that Choyikutty was taken to the Sub Registry Office in an autorickshaw. With **RFA No.873 of 2013** -: 15 :- regard to the mental and physical capacity of Choyikutty, though DWs.2 and 3 were cross-examined, no material to find the incapacity of Choyikutty was brought out. In fact, the pointed suggestion to the defence witnesses was that Choyikutty was compelled to execute the Will by threat and coercion. None of the plaintiffs have chosen to mount the witness box. In spite of the fact that PW1 was aware of the execution of the Will on 03.01.1976 itself, there was no challenge against the same till the year 2010. Choyikutty died only three years after the execution of the Will. There is nothing to suggest that Choyikutty was suffering from such serious illness that prevented him from prosecuting the Will. The very fact that he remained alive for a further period of three years would tell upon the said contention. **RFA No.873 of 2013** -: 16 :- 22. The learned Senior Counsel for the appellants would rely on Section 90 of the Evidence Act and the decision in _**Narayanan Radhakrishna Menon v. Narayanan Sukumara Menon and Ors., 2018 (2) KLT 553**_ to contend that, the Will being more than 30 years old and produced from proper custody presumption of genuineness is liable to be drawn under Section 90 of the Evidence Act. As the Section itself states, even if presumption could be drawn, the court can still call upon party to prove that document. On the allegation of the suspicious circumstances as urged, the court was justified in not having decided the case solely on the basis of presumption under Section 90. 23. The learned counsel for the respondents would contend that, the fact that the Will was got back from the SRO by the legatee and that the daughters were **RFA No.873 of 2013** -: 17 :- excluded tells upon the genuineness of the Will. Mere exclusion of the daughters from the disposition is not a circumstance to hold against the genuineness of the Will. _(See_ , _**Swarnalatha and Others v. Kalavathy and Others, AIR 2022 SC 1585, Leela Rajagopal and Others v. Kamala Menon Cocharan and Others, (2014) 15 SCC 570, Mahesh Kumar v. Vinod Kumar and Others, (2012) 4 SCC 387, Savithri and Others v. Karthyayani Amma and Others,**_ _**(2007) 11 SCC 621, Raveendran C.G. and Others v. C.G. Gopi and Others, 2015 (3) KLT 740** )._ The daughters were given in marriage and Choyikutty was residing with Krishnan. Therefore, the testator might have considered it proper to make a bequest in favour of his son. Since they were residing together, the mere fact that the Will was got back from the SRO by Krishnan without Choyikutty himself going to the SRO, is not of much significance. The circumstances suggested by the plaintiffs are not sufficient to hold **RFA No.873 of 2013** -: 18 :- against the genuineness of the Will. The trial court has not taken into consideration the aforementioned aspects while holding that the execution of the Will has not been proved. The finding against the execution and genuineness of the Will is liable to be set aside and I do so. 24. On the findings as above, the decree and judgment of the trial court are liable to be interfered with. Shares regarding plaint item nos.1 to 3 are to be reallotted. Plaint item no.6 is to be excluded from partition. Resultantly, this appeal is allowed. The decree and judgment of the trial court are set aside. It is held that plaint item No.6 is not available for partition. Plaint item numbers 1 to 5 are liable to be partitioned by metes and bounds in the following manner:- **RFA No.873 of 2013** -: 19 :- (i) One half of the plaint item nos. 1 to 3 are liable to be divided into 5 equal shares, and 4 out of 5 shares are to be allotted to the plaintiffs. (ii) Plaint item nos. 4 and 5 are liable to be divided into 5 equal shares, and 4 out of 5 shares are to be allotted to the plaintiffs. - (iii) Plaint item no.6 is not available for - partition. (iv) Parties are directed to appear before the trial court on 04.08.2023. The trial court shall proceed with the final decree as held by the Apex Court in _**Kattukandi Edathil Krishnan and another v. Kattukandi Edathil Valsan**_ _**and others (2022 SCC OnLine SC 737)**_ . Sd/- **SATHISH NINAN JUDGE** kns/- //True Copy// P.S. to Judge