R.S.A.No.444 of 2021

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **WEDNESDAY, THE 4[TH] DAY OF AUGUST 2021 / 13TH SRAVANA, 1943** **RSA NO. 444 OF 2021** **[AGAINST THE JUDGMENT AND DECREE DTD. 17.02.2020 IN A.S.NO.104/2011 OF DISTRICT COURT,PATHANAMTHITTA ARISING FROM THE JUDGMENT AND DECREE DTED.29.3.2010 IN O.S.NO.208/2006 OF MUNSIFF'S COURT, ADOOR.]** ## **APPELLANTS/APPELLANTS/PLAINTIFFS 1 TO 3:** 1 RAJAN P. AGED 39, S/O.PODIYAN,PUTHIYADATHU VEETIL, MUNDAPALLI MURI,PERINGANAD VILLAGE,ADOOR,PATHANAMTHITTA -691551. 2 THANKAMMA, D/O.ADICHAN,AGED 72,THONDAPURATHU KIZHEKETHIL VEEDU,PERUR MURI, KOTTANGARA VILLAGE,KOLLAM TALUK,KOLLAM-691504. 3 RADHA, D/O.PODIYAN,AGED 41,CHEMMANETTATHU VEEDU,ILAMANNUR MURI,ENADIMANGALAM VILLAGE,ADOOR TALUK,PATHANAMTHITTA691524. BY ADVS. C.S.MANILAL S.NIDHEESH ACHUT M NAIR ## **RESPONDENT/RESPONDENT/DEFENDANT:** MADHU S/O.RAGHAVAN, AGED 59,MANNANIKAL VEEDU, PATTOOR MURI, NOORANADU VILLAGE, MAVELIKARA TALUK, ALAPUZHA - 690504 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 29.07.2021, THE COURT ON 04.08.2021 DELIVERED THE FOLLOWING: R.S.A.No.444 of 2021 :-2-: ## **J U D G M E N T** **This appeal is directed against the judgment and decree dated 17.2.2020 in A.S.No.104/2011 on the file of the District Court, Pathanamthitta (hereinafter referred to as 'the first appellate court') confirming the judgment and decree dated 29.3.2010 in O.S.No. 208/2006 on the file of the Munsiff's Court, Adoor (hereinafter referred to as 'the trial court'). The appellants are the plaintiffs in the suit. The suit was filed by the appellants for permanent prohibitory injunction restraining the defendants from trespassing into the plaint schedule property. The parties are hereinafter referred to as 'the plaintiff' and 'the defendant' in accordance with their status in the trial court unless otherwise stated.** R.S.A.No.444 of 2021 :-3-: ## **2. The plaint averments in brief are hereinbelow:-** **The first and third plaintiffs are the children of Sri.Podiyan who is the son of Sri.Adichan. Mother of Podiyan and second appellant Thankamma died and after her death, Sri.Adichan married Smt.Velumbi. No issues were born in the wedlock between Sri.Adichan and Smt.Velumbi. Smt.Velumbi is the second wife of Sri.Adichan, who is the paternal grandfather of first and third plaintiffs. The second plaintiff Smt.Thankamma is the daughter of Sri.Adichan. The first plaintiff was residing along with Sri.Adichan and Smt.Velumbi. He was looking after the affairs of Sri.Adichan and Smt.Velumbi during their life time. The plaint schedule items 1 to 3 properties having total extent of 42.98 ares was owned by Sri.Adichan. The entire plaint schedule properties were given to by Sri.Adichan as per settlement deed** R.S.A.No.444 of 2021 :-4-: **2283/1984 and sale deed No.653/1989. The entire properties were lying in common and Smt.Velumbi was in physical possession of the property as absolute owner thereof. Smt.Velumbi and Sri.Adichan jointly executed Ext.A1 Will deed on 22.9.2004 bequeathing plaint schedule item Nos. 1 to 3 in favour of plaintiffs 1 to 3 respectively. The properties, which are scheduled in the plaint, are scheduled as item Nos.1 to 3 properties in the plaint. Subsequently, Smt.Velumbi died on 30.12.2005 and after that, plaintiffs and Sri.Adichan were in joint possession of the property and had effected improvements therein. The first plaintiff was residing along with Sri.Adichan in the building situated in the plaint schedule item No.1 property for the purpose of looking after Sri.Adichan. Defendant is the grandson of the elder sister of Smt.Velumbi. Alleging that the defendants are taking attempt to forceful** R.S.A.No.444 of 2021 :-5-: **possession of the plaint schedule properties, the present suit has been filed for injunction simplicitor restraining the defendant from trespassing into the plaint schedule property or from interfering with the possession of the plaintiffs in any manner by way of decree for permanent prohibitory injunction.** **3. In the written statement filed, the defendant contended that during the life time of Smt.Velumbi, she had not executed any Will. Execution of the alleged Will is denied. Smt.Velumbi died on 30.12.2005. Prior to three years, she was suffering from Alzheimers. On the alleged date of execution of Ext.A1 Will, the testatrix Velumbi was not having testamentary capacities. The defendant obtained absolute right and title over 56¾ cents of property on the strength of Sale Deed No.1164 dated 30.3.2006. Since the plaintiffs are making attempt to trespass into the property on** R.S.A.No.444 of 2021 :-6-: **the strength of a forged will, defendant filed a counter claim to declare the title and possession of the defendant in the counter claim schedule property and also to restrain the plaintiffs from trespassing into the counter claim schedule property.** **4. The plaintiffs filed replication to the counter claim contending that on 30.3.2006, Sri.Adichan was aged more than 90 years and he was totally incapacitated to execute a sale deed and even if such a sale deed was executed, the same was as a result of fraud and misrepresentation. Smt.Velumbi executed the Will deed with her free consent and volition and at the time of execution of the will, she was mentally and physically fit.** **5. After formulating the issues, the** **trial court examined first plaintiff as PW1. PWs.2 and 3 were also examined on the side of plaintiffs and marked Exts.A1 to A9. DWs.1 to 3** R.S.A.No.444 of 2021 :-7-: **were examined on the side of the defendants and marked Exts.B1 to B3. Exts.C1 to C4 were also marked.** **6. After analysing the evidence on record, the trial court held that the plaintiffs failed to prove the execution of Ext.A1 Will Deed. The trial court entered a finding that the defendant purchased the counter claim schedule property on the basis of Ext.B1 Sale deed. The trial court dismissed the suit and decreed the counter claim. Although the matter was carried in appeal, the same was dismissed. Hence, this Second appeal.** **7. Heard Sri.S.Nidheesh, the learned counsel for the appellants.** **8. Learned counsel for the appellants contended that the two courts below were not right in holding that the venue of execution of the Will stated in the document and the actual place of execution being different is a** R.S.A.No.444 of 2021 :-8-: **suspicious circumstance, especially when extrinsic evidence as to the actual venue of execution will not militate against the document particularly the same is permissible by virtue of the 6[th] Proviso to Section 92 as well as Section 95 of the Evidence Act. According to the learned counsel, merely because the attesting witnesses are close relatives of the testator by itself is a legal infirmity.** **9. Parties are Hindus. Sri.Adichan's first wife died. Subsequent to her death, Sri.Adichan married Smt.Velumbi. Smt.Velumbi also died on 30.12.2005. Subsequent to the death of Smt.Velumbi, the entire plaint schedule properties were devolved upon her husband Sri.Adichan as per Section 15(1)(a) and Section 16 of the Hindu Succession Act. As per Ext.B1 sale deed, Sri.Adichan sold counter claim schedule property in favour of the defendant on 30.3.2006. Subsequent to Ext.B1 sale deed,** R.S.A.No.444 of 2021 :-9-: **mutation was effected in respect of the counterclaim schedule property in the name of the defendant and he paid tax to the counter claim schedule property by virtue of Ext.B2.** **10. Indisputably, at the time of death of Smt.Velumbi, the entire plaint schedule properties were owned by her. It is the case of the plaintiffs that prior to her death, she bequeathed the entire plaint schedule properties in favour of plaintiffs 1 to 3 by way of Ext.A1 Will deed dated 22.9.2004. Consequent to the death of Smt.Velumbi, according to the plaintiffs, the first plaintiff was residing along with Sri.Adichan and Smt.Velumbi and looking after their affairs. The execution of Ext.A1 Will Deed was seriously challenged by the defendant. On a perusal of Ext.A1 and evidence let in, the trial court and the first appellate court concurrently held the following points:-** R.S.A.No.444 of 2021 :-10-: **(a) Testatrix Smt.Velumbiwas incapacitated mentally and physically due to old-age and alzheimers and the said aspect can be reflected in the affidavit filed by PW1/first plaintiff in lieu of chief examination.** **(b) In Ext.A1 Will Deed in page No.4, it is specifically recited that testatrix subscribed her signature in Ext.A1 Will Deed in the presence of witnesses inside her residential house ie., 'Puthiyidathu Veedu' within the jurisdiction of Adoor Sub Registry Office. In the said page, it is also recited that the Will Deed is to be registered in Adoor Sub Registry Office. But at the same time, now the version of PW1 to PW3 before court is that testatrix Smt.Velumbi subscribed her signature in Ext.A1 Will Deed when she was present in the office of the document writer named Monachan situated in Adoor.** - **(c) No thumb impression seen affixed by testatrix in Ext.A1 Will Deed and the signature purported to have been subscribed by the testatrix seen in Ext.A1 is rudimentary in nature. The documents registered by Smt.Velumbi formerly contained her thumb impression and signature.** - **(d) Even though in Ext.A1 Will Deed, it is recited that the document is to be registered in Adoor Sub Registry Office the same is not seen registered.** - **(e) Both the attesting witnesses signed in Ext.A1 Will Deed are close relatives of propounders. Witness No.1 Podiyan is the** R.S.A.No.444 of 2021 :-11-: **father of first and third plaintiffs and witness No.2 Dhanaseelan is the husband of second plaintiff Thankamma. The absence of independent witness in Ext.A1 Will Deed is highly doubtful.** - **(f) The children of Sri.Adichan including Podiyan who is the father of first and third plaintiffs and second plaintiff Thankamma were in inimical terms with Sri.Adichan as Adichan solemnized his second marriage with Smt.Velumbi and criminal cases were registered against Podiyan alleging that Podiyan assaulted Adichan. In such a situation, it is not probable that Smt.Velumbi bequeathed her entire properties in favour of the plaintiffs.** - **(g) The absence of Adichan as a witness in Ext.A1 Will Deed is also a suspicious circumstance.** - **(h) From the materials available on record, it can be seen that the propounders /appellants /plaintiffs and their close relatives were actively participated in the execution of Ext.A1 Will.** **11. In this connection, it is pertinent** **to note that mutation of any portion of the** **plaint schedule properties were not effected in** **the name of the plaintiffs. From Ext.A2 tax receipt produced by the plaintiffs, it is** R.S.A.No.444 of 2021 :-12-: **evident that on 30.3.2006, the thandaper of the entire plaint schedule properties was in the name of Smt.Velumbi. Hence, even after the death of Smt.Velumbi, the plaintiffs had not effected mutation of the plaint schedule property in their name though they had set up a claim on the strength of Ext.A1 Will deed. Although Ext.B1 sale deed in favour of the defendant is assigned, no prayer for cancellation of Ext.B1 is seen made. PW1 admitted that Adichan died only on 30.12.2008. The suit was filed in 2006. Sri.Adichan was not arraigned as a party in the original suit. The suit was instituted without the junction of Adichan in the party array. There was no cancellation of the sale deed also. Although Ext.B1 Sale deed was assailed by the plaintiffs on the ground that Adichan had not executed Ext.B1 sale deed and his signature etc. are different, the plaintiffs failed to make him as** ## R.S.A.No.444 of 2021 :-13-: **a party to elicit the exact truth. In the circumstances, the only inference, which could be drawn, is that Adichan has no case that he had not subscribed his signature and affixed his thumb impression in Ext.B1. There was no case for the plaintiff that Ext.B1 was executed on the ground of fraud, undue influence and misrepresentation. The plea contemplated under Order VI Rule 4 of CPC are absolutely lacking in the plaint. In view of the above circumstances, both the trial court and the appellate court rightly held that the defendant obtained title and possession over the counter claim schedule property on the strength of Ext.B1 sale deed.** **12. The burden of proof, that Ext.A1 Will was executed by the testator, is on the propounder. The propounder is also required to prove that the testator had signed the will and that he had put his signature out of his own free will having a sound disposition of mind and** R.S.A.No.444 of 2021 :-14-: **understood the nature and effect thereof. If sufficient evidence in this regard is brought on record, the onus of the propounder may be held to have been discharged. But, the onus would be on the propounder to remove all suspicious circumstances by leading satisfactory evidence if there exists any. In the case on hand, it has come out evidence that testatrix was suffering from Alzheimers during the fag end of her life and she died before her husband's death. No explanation was offered as to why the Will was not registered. In Ext.A1 Will Deed, thumb impression of Smt. Velumbi is conspicuously absent though in all other former documents executed by her she put her signature and affix her thumb impression. The disputed Ext.A1 Will was executed in 2004. Exts.A3 and A4 settlement deeds were executed in the years 1985 and 1989 respectively. In Ext.A3 and A4, Adichan and Velumbi are parties. In both** R.S.A.No.444 of 2021 :-15-: **Exts.A3 and A4, the signature and thumb impression of Velumbi are present. Even as per the case of the plaintiffs, the document was executed at the office of a document writer. The husband of Smt.Velumbi, Adichan was not a party to Ext.A1 Will. The trial court and the appellate court meticulously analysed the evidence in detail and followed the decisions of the Supreme Court reported in H.Venkatachala Iyengar v. B.N.Thimmajamma & others [AIR 1959 SC 443], Ramachandra Rambux v. Champabai and others [AIR 1965 SC 354] and Bharpur Singh and Others v. Shamsher Singh [(2009) 3 SCC 687].** **13. Going by the entire evidence, both the trial court and the appellate court concurrently held that plaintiffs failed to prove Ext.A1 Will and failed to remove all the suspicious circumstances attached to the will in accordance with the provisions of Section 63 of the Indian Succession Act and Section 68 of the** R.S.A.No.444 of 2021 :-16-: **Indian Evidence Act. The finding is based on cogent and binding evidence on record. The conclusions of the trial court and the first appellate court negativing the contentions of the plaintiffs on the strength of Ext.A1 Will does not warrant interference in a second appeal. By virtue of Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act, the general principles to be applied to determine the question involved in the suit is well settled. Well settled principles would not be a substantial question of law as contemplated under Section 100 of the CPC. Going by the evidence adduced in this case, there is no controversy before this Court with regard to the interpretation or legal effect of Ext.A1 or any wrong application of a principle of law in construing Ext.A1. There is no debatable issue before this court which is not covered by settled principle of law.** R.S.A.No.444 of 2021 :-17-: **Resultantly, this R.S.A is dismissed in limine. There will be no order as to costs. The pending applications, if any, stand closed.** **Sd/N.ANIL KUMAR, JUDGE** **MBS/**