Regular First Appeals Nos. 323 and 631 of 2009

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **WEDNESDAY, THE 14[TH] DAY OF FEBRUARY 2024 / 25TH MAGHA, 1945 RFA NO. 323 OF 2009** **AGAINST THE JUDGMENT AND DECREE DATED 03.11.2008 IN O.S.NO.726 OF 2006 OF THE II ADDITIONAL SUB COURT, ERNAKULAM APPELLANT/1ST DEFENDANT:** P.G.SANTHOSH, AGED 38 YEARS, S/O.LATE GANGADHARAN, PULICKALPARAMBIL HOUSE, CHATHANGAT ROAD, PALARIVATTOM. BY ADVS. SRI.P.VISWANATHAN (sr.) SRI.AJITH VISWANATHAN ## **RESPONDENTS/PLAINTIFF AND DEFENDATS 2 AND 3:** 1 P.G.SHAJI, AGED 47 YEARS, S/O.LATE GANGADHARAN, "ANJALI", 12/4A, WEST MOOLAPPADAM ROAD, VAZHAKKALA, KAKKANAD WEST P.O., KOCHI-30. 2 MRS.MARIAMMA BABU, AGED ABOUT 55 YEARS, W/O.BABU CHANDRATHIL, PALLINADA,, PALARIVATTOM, KOCHI-25. 3 BABU v. GEORGE, AGED ABOUT 63 YEARS, S/O.GEORGE CHANDRATHIL, PALLINADA, PALARIVATTOM, KOCHI-25. BY ADVS.SRI.P.S.BIJU - R1 SRI.P.BENNY THOMAS - R2 SRI.M.GOPIKRISHNAN NAMBIAR - R2 SRI.K.JOHN MATHAI - R2 SRI.JOSON MANAVALAN - R2 SRI.KURYAN THOMAS - R2 SRI.CHETHAN KRISHNA R. - R2 THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON 14.02.2024, ALONG WITH RFA.631/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.F.A.Nos.323 and 631 of 2009 -: 2 :- # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SATHISH NINAN WEDNESDAY, THE 14[TH] DAY OF FEBRUARY 2024 / 25TH MAGHA,** ## **1945** **RFA NO. 631 OF 2009** **AGAINST THE JUDGMENT DATED 03.11.2008 IN O.S.NO.726 OF 2006 OF THE II ADDITIONAL SUB COURT, ERNAKULAM** ## **APPELLANTS/ADDITIONAL DEFENDANTS 2 AND 3:** 1 MRS.MARIAMMA BABU, W/O.BABU CHANDRATHIL, PALLINADA, PALARIVATTOM, KOCHI-25. 2 BABU C.GEORGE, S/O.GEORGE CHANDRATHIL, PALLINADA, PALARIVATTOM, KOCHI-25. BY ADVS. SRI.E.K.NANDAKUMAR SRI.P.BENNY THOMAS SRI.K.JOHN MATHAI SRI.JOSON MANAVALAN ## **RESPONDENTS/PLAINTIFF AND 1ST DEFENDANT:** 1 P.G.SHAJI, S/O.LATE GANGADHARAN, 'ANJALI', 12/4A, WEST MOOLEPPADAM ROAD, VAZHAKKALA, KAKKANAD WEST.P.O, KOCHI-30. 2 P.G.SANTHOSH, S/O.LATE GANGADHARAN PULICKALPARAMBIL HOUSE, CHATHANGAT ROAD, PALARIVATTOM. R.F.A.Nos.323 and 631 of 2009 -: 3 :- BY ADVS. SRI.P.S.BIJU - R1 SRI.O.F.JUSTIN - R2 THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON 14.02.2024, ALONG WITH RFA.323/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **SATHISH NINAN, J.** **= = = = = = = = = = = = = = = = = = R.F.A.Nos.323 and 631 of 2009 = = = = = = = = = = = = = = = = = = Dated this the 14[th] day of February, 2024** ## **JUDGMENT** These appeals arise from the preliminary decree in a suit for partition. R.F.A.No.323 of 2009 is filed by the 1[st] defendant, and R.F.A.No.631 of 2009 is by defendants 2 and 3. 2. The plaint schedule property is 6.90 cents. The property originally belonged to one Achuthan. He had two daughters, Leela and Vasumathy. Leela has four children, namely, the plaintiff, the 1[st] defendant, Sajeevan and Asokan. 3. According to the plaintiff, Achuthan had executed Will No.17 dated 28.01.1995(Ext.X1). Under the Will, the property was bequeathed in favour of the plaintiff and the 1[st] defendant. There was an obligation cast on the 1[st] defendant to pay an amount of R.F.A.Nos.323 and 631 of 2009 -: 2 :- Rs.50,000/- to the plaintiff. Achuthan died in the year 1995. Claiming partition, the suit was filed. 4. The 1[st] defendant disputed the genuineness of the Will. It was alleged that, it is a fabricated one. It was further alleged that, during the relevant time Achuthan did not have the required mental capacity to execute the Will. It was also contended that, on the death of Achuthan, his daughters Leela and Vasumathy had jointly executed Ext.B1 Sale Deed dated 17.12.2003 in favour of the 1[st] defendant. Subsequently, as per Ext.B3 Sale Deed dated 07.08.2006, the 1[st] defendant conveyed the property in favour of the 3[rd] defendant. Thus, the claim for partition was challenged. 5. The trial court upheld the Will and passed a preliminary decree for partition. 6. I have heard Shri.P. Viswanathan, the learned Senior Counsel for the appellants and Shri.Chethan Krishna R. and Shri.P.S. Biju on behalf of the ## R.F.A.Nos.323 and 631 of 2009 -: 3 :- respondents. ## 7. The points that arise for determination are; _i) Is the finding of the trial court with regard to the proof of Ext.X1 Will, supported by the evidence on record?_ _ii) Has the plaintiff discharged the burden of explaining the suspicious circumstances if any, surrounding the Will?_ ## 8. Section 63(c) of the Indian Succession Act, 1925 reads thus; _“The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary”._ It requires the testator to sign in the presence of the witnesses and the witnesses are to subscribe their signatures in the presence of the testator. In terms of Section 68 of the Indian Evidence Act, it would be R.F.A.Nos.323 and 631 of 2009 -: 4 :- sufficient if anyone of such witness is examined to prove the due execution and attestation of the will. In the case at hand, both the witnesses to the Will were examined as PWs 3 and 4, respectively. A reading of the evidence of both PWs 3 and 4 would reveal that, but for a mere statement that they are witnesses to the will, there is no evidence to the effect that they saw the testator signing the will and the testator has seen them signing the will. Thus, the basic mandates under Section 63(c) of the Indian Succession Act has not been proved. The trial court has not considered the aforesaid aspect. The trial court upheld the Will for the reason that, on the circumstances obtaining in the case, the disposition appeared to be reasonable. 9. Though the genuineness of the Will was disputed by the defendants, but for examination of PWs 3 and 4, no steps were taken by the plaintiff to prove that the signature and the thump impression seen in the Will is R.F.A.Nos.323 and 631 of 2009 -: 5 :- that of the testator. The finger print register was summoned from the Sub Registry Office as was marked as Ext.X2. Admittedly, Achuthan had executed registered conveyances in favour of his daughter, Vasumathy and his grandchildren, Sajeevan and Asokan. Though, the plaintiff as PW1 would depose that his brothers Sajeevan and Asokan had taken Achuthan to the Sub Registry Office, either of them are not examined. 10. If Achuthan had executed the Will, there is no reason why his daughters Leela and Vasumathy, would not even be aware of the same. The fact that they were unaware of such Will is evident from Ext.B1 Sale Deed executed by them in the year 2003 in favour of the 1[st] defendant. Though, the defendants alleged impersonation of the testator, the identifying witness to the Will was not examined. 11. Achuthan died in the year 1995 and the suit is filed only on 12.12.2006. The Will has been brought to R.F.A.Nos.323 and 631 of 2009 -: 6 :- light only through the suit. Mutation was not effected based on the Will. The long delay in putting forward the rights based on the Will, i.e., after expiry of 11 years from the date of death of Achuthan, cast doubt on the genuineness of the will. In _**Kalyan Singh, London Trained Cutter, Johri Bazar, Jaipur v. Smt.Chhoti and others [(1990) 1 SCC 266]**_ , the Apex Court observed that, such inordinate delay in establishing rights under the Will is a suspicious circumstance. The Apex Court held; _“The Will has not been produced for very many years before the court or public authorities even though there were occasions to produce it for asserting plaintiff's title to the property. The plaintiff was required to remove these suspicious circumstances by placing satisfactory materials on record.”_ The plaintiff has not even attempted to explain the reason for not seeking enforcement of the rights under the Will for the long period of 11 years. R.F.A.Nos.323 and 631 of 2009 -: 7 :- 12. The Will is dated 28.01.1995. Though the exact date of death of Achuthan is not brought on record, admittedly, he died in the year 1995 itself and he was aged 85 years at the time of his death. The defendants challenged the mental capacity of Achuthan during the relevant period. In spite of the above, none of the witnesses examined on behalf of the plaintiff deposed about the mental capacity of Achuthan at the relevant time. 13. Thus, for reasons many, it could only be held that the plaintiff has failed to prove Ext.X1 Will. The decree and judgment of the trial court is liable to be interfered with. Resultantly, the appeals are allowed. The decree and judgment of the trial court are set aside. The suit will stand dismissed. No costs. Sd/- ## **SATHISH NINAN, JUDGE** yd