R.S.A.No.932 of 2019

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **WEDNESDAY, THE 8[TH] DAY OF MARCH 2023 / 17TH PHALGUNA, 1944 RSA NO. 932 OF 2019** **AGAINST THE JUDGMENT AND DECREE DATED 31.07.2018 IN AS 27/2010 OF SUB COURT, ATTINGAL WHICH ARISE FROM THE JUDGMENT DATED 17.08.2009 IN** **OS 132/2001 OF MUNSIFF'S COURT,ATTINGAL (AMENDMENT IN THE CAUSE TITLE OF THE APPEAL MEMORANDUM ALLOWED BY ORDER DATED 09.08.2021 IN I.A.NO.3/2021 & I.A.NO.4/2021 IN R.S.A.NO.932 of 2019 BY ThIS HON'BLE COURT** ## **APPELLANTS/APPELLANTS 2 & 3/DEFENDANTS 2 & 3:** 1 MINI, AGED 43 YEARS D/O.SATHYABHAMA, THEMBAVILA VEEDU, KOPPAM, ADAYAMON DESOM, PAZHAYAKUNNUMEL VILLAGE, THIRUVANANTHAPURAM DISTRICT- 695601. 2 RAJESH, AGED 41 YEARS S/O.SATHYABHAMA, THEMBAVILA VEEDU, KOPPAM, ADAYAMON DESOM, PAZHAYAKUNNUMEL VILLAGE, THIRUVANANTHAPURAM DISTRICT- 695601. BY ADV M.DINESH **RESPONDENTS/RESPONDENTS 2, 6, 7, 8, 9, 10, 11, 12, 13, 14/2ND PLAINTIFF (R2 TO R10 IN THE AMENDED R.S.A.No.932/2019 ARE THE LEGAL REPRESENTATIVES OF 3RD PLAINTIFF (SARADA), R11 IN THE AMENDED R.S.A.NO.932/2019 IS THE LEGAL REPRESENTATIVE OF 1ST DEFENDANT/1ST APPELLANT (NATARAJAN) & SATHYABHAMA (R4 IN A.S.NO.27/2010):** R.S.A.No.932 of 2019 2 - 1 DEVAKI, AGED 84 YEARS D/O.KRISHNAN, KUNNIL PUTHEN VEEDU, KADAKKAL DESOM AND VILLAGE, KADAKKAL P.O., THIRUVANANTHAPURAM691536.(DELETED) - 2 RADHA, D/O.SARADA, ERUTTUPACHA MAMOOTTIL VEEDU, KUNNIL PUTHEN VEEDU, KADAKKAL DESOM AND VILLAGE, KADAKKAL P.O., THIRUVANANTHAPURAM- 691536. (DELETED) - 3 VASANTHI, D/O.SARADA, KUNNEL PUTHEN VEEDU, KADAKKAL DESOM, KADAKKAL VILLAGE, KADAKKAL P.O., THIRUVANANTHAPURAM- 691536. - 4 THULASEEDHARAN, S/O.VELAYUDHAN, ERUTTUPACHA MAMOOTTIL VEEDU, KUNNIL PUTHEN VEEDU, KADAKKAL DESOM AND VILLAGE, KADAKKAL P.O., THIRUVANANTHAPURAM- 691536. - 5 PUSHPARAJAN, S/O.VELAYUDHAN, ERUTTUPACHA MAMOOTTIL VEEDU, KUNNIL PUTHEN VEEDU, KADAKKAL DESOM AND VILLAGE, KADAKKAL P.O., THIRUVANANTHAPURAM- 691536. - 6 MURALEEDHARAN, S/O.VELAYUDHAN, ERUTTUPACHA MAMOOTTIL VEEDU, KUNNIL PUTHEN VEEDU, KADAKKAL DESOM AND VILLAGE, KADAKKAL P.O., THIRUVANANTHAPURAM- 691536. - 7 VIJAYAN, S/O.VELAYUDHAN, ERUTTUPACHA MAMOOTTIL VEEDU, KUNNIL PUTHEN VEEDU, KADAKKAL DESOM AND VILLAGE, KADAKKAL P.O., THIRUVANANTHAPURAM- 691536. (DELETED) (R1,R2 AND R7 IN THE AMENDED RSA ARE DELETED FROM THE PARTY ARRAY AT THE RISK OF APPELLANTS AS PER ORDER DATED 30.11.2022 IN IA.2/2022) - 8 ASOKAN, S/O.VELAYUDHAN, ERUTTUPACHA MAMOOTTIL VEEDU, KUNNIL PUTHEN VEEDU, KADAKKAL DESOM AND VILLAGE, KADAKKAL P.O., THIRUVANANTHAPURAM- 691536. - 9 ANIL, S/O.VELAYUDHAN, ERUTTUPACHA MAMOOTTIL VEEDU, KUNNIL PUTHEN VEEDU, KADAKKAL DESOM AND VILLAGE, 3 ## R.S.A.No.932 of 2019 KADAKKAL P.O., THIRUVANANTHAPURAM- 691536. 10 LALI,D/O.VELAYUDHAN, ERUTTUPACHA MAMOOTTIL VEEDU, KUNNIL PUTHEN VEEDU, KADAKKAL DESOM AND VILLAGE, KADAKKAL P.O., THIRUVANANTHAPURAM- 691536. 11 SINI AGED 38 YEARS EDAVA VILLAGE, THIRUVANANTHAPURAM-695 311 R8 and R11 BY ADV LATHEESH SEBASTIAN THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 23.02.2023, THE COURT ON 08.03.2023 DELIVERED THE FOLLOWING: R.S.A.No.932 of 2019 4 ## **M.R.ANITHA, J** ****************** R.S.A.No.932 of 2019 ---------------------------------------------Dated this the 8[th] day of March, 2023 ## **JUDGMENT** The Regular Second Appeal has been filed against the judgment and decree in A.S.No.27/2010 on the file of Subordinate Judge's Court, Attingal which in turn arise out of the judgment and decree in O.S.No.132/2001 on the file of Munsiff's Court, Attingal. 2. Appellants are the defendants. Suit is one for partition. Respondents are the plaintiffs. Plaint schedule property belongs to late K.Janardhanan and respondents are the sisters of said Janardhanan who died intestate on 09.12.2000. He was a Taluk Surveyor and purchased the plaint schedule properties by virtue of several documents and he died as a bachelor and the entire property after his death devolved equally upon the siblings. After the funeral ceremonies of late 5 R.S.A.No.932 of 2019 Janardhanan, respondents approached the appellants to partition the property amicably and they agreed for the same. But, later they informed about a Will executed by late Janardhanan bequeathing the properties in favour of the appellants and expressed their unwillingness to partition the properties. Hence the suit. 3. Appellants filed written statement contending that Janardhanan executed a Will on 26.08.2000 bequeathing the properties to them. It is also contended that they never agreed for partition and hence according to them, the plaint schedule properties are not partible. 4. The suit was tried along with O.S.No.101/2001 filed by the appellants seeking for a declaration of the right over the plaint schedule properties on the basis of the Will executed by deceased Janardhanan. O.S.No.101/2001 was taken as the leading case. PW1 to PW5 were examined and Exts.A1 to A45 were marked from the side of the appellants. DW1 and DW2 were examined and Exts.B1 to B6 were marked from the side of the respondents. Exts.C1, C2 and Exts.X1 to X13 were also R.S.A.No.932 of 2019 6 marked. 5. On evaluating the facts and circumstances and evidence, the trial court dismissed O.S.No.101/2001 and decreed O.S.No.132/2001 allotting 3/4 share out of schedule properties to the respondents and 1/4 to the appellants. Aggrieved by the judgment and decree passed in both the suits, the appellants filed A.S.No.26/2010 and 27/2010 and the first appellate court heard the appeals together and a common judgment was passed confirming the judgment and decree passed in both suits by the trial court. Against which the above R.S.A has been filed aggrieved by the judgment and decree in A.S.No.27/2010 which arouse out of the judgment in O.S.No.132/2001. 6. Appellants had filed O.S.No.101/2001 for declaring their right over the plaint schedule property on the basis of the Will alleged to have been executed by deceased Janardhanan who is the brother of the first appellant bequeathing his entire properties to the appellants which is scheduled as plaint A, B and C in the plaint in O.S.No.101/2001. Respondents, on the other hand, stoutly denied the execution of the Will in favour of the R.S.A.No.932 of 2019 7 appellants. In the suit filed by the respondents for partition from the concurrent findings in the above case, the above R.S.A has been filed. Appellants had raised the same contention of execution of Will by deceased Janardhanan in O.S.No.132/2001. Both cases were tried jointly as per order in I.A.No.1398/2004 taking O.S.No.101/2001 filed by the appellants herein seeking for declaration and injunction as the leading case. The trial court dismissed O.S.No.101/2001 and first appellate court confirmed the dismissal of the suit. But, no second appeal has been filed against the judgment in O.S.No.101/2001 by the appellants. So, as per the dictum laid down in **Narhari v. Shankar : AIR 1953 SC 419 : 1950 KLT Online 821 (SC)** , **Narayana Prabhu Venkateswara Prabhu v. Narayan Prabhu Krishna Prabhu : AIR 1977 (2) SCC 181 : 1977 KLT Online 1976** the judgment in O.S.No.101/2001 will operate as res judicata in entertaining the present appeal which arouse from a suit filed by the respondents seeking for partition of the very same properties. Hence, no further discussion is required for dismissing the appeal in limine. However, in view of the arguments advanced by the R.S.A.No.932 of 2019 8 learned counsel with regard to the findings made by the courts below regarding the execution of the Will and proof of the same, I would think it appropriate to make a short discussion of facts. 7. Admittedly, the plaint schedule properties are the self-acquired properties of late Janardhanan who is the brother of the first appellant and the respondents. He died as a bachelor without any issues and the appellants claimed that he had executed a Will Ext.A1 in favour of the appellants bequeathing the entire properties belonging to him to the appellants. Appellants have got a contention that respondents were in enemical terms with late Janardhanan and it is also their case that late Janardhanan was very fond of appellants 2 and 3 and it was because of that, excluding other legal heirs, the Will was executed by him in favour of the appellants. Both courts, after elaborate discussion of evidence with regard to proof of Ext.A1 Will, discarded the case of the appellants and found that execution of Ext.A1 Will is shrouded with suspicious circumstances and appellant could not prove that Ext.A1 was R.S.A.No.932 of 2019 9 executed by Janardhanan out of free will and the two attestors of the Will were examined as PW2 and PW3 and their evidence was also found to be not trustworthy by the courts below. It is contended by the learned counsel for the appellants that the grounds for disbelieving the evidence of PW2 and PW3 are not sound reasons. The judgments passed by the courts below would go to show that PW2 is a close friend of PW1, the first appellant and his evidence is that, on 09.12.2000 at about 10.30 a.m, late Janardhanan came to Puthiyakavu junction to execute the Will at the office of the document writer Sukumaran. But the Will was executed on 22.08.2000 and actually 09.12.2000 is the date on which late Janardhanan died. So, the courts below found that there is material contradiction in the evidence of PW1 and PW2 with regard to execution of the Will. PW3 the other attestor is found to be a resident of Pazhayakunnummel village and the document writer's office is at Puthiyakavu Junction and it has been found by the courts below that the circumstances which led PW3 a resident of Pazhayakunnummel village to come to the office of the document writer at Puthiyakavu, for the purpose of R.S.A.No.932 of 2019 10 putting signature is not explained. His address is also found to be incorrect in Ext.A1 Will and no explanation was offered for the error in the address by the witness during examination. So, that was taken as a suspicious circumstance by the courts below and more over, the name of the scribe shown in Ext.A1 Will is N.Sukumaran with licence No.TSB.284. DW2 was examined to prove that no such Scribe with such licence number is available at Kilimanoor. Exts.X1 and X2 are the licence registers issued at the time of registering the scribes. So, it was contended by the respondents that N.Sukumaran is a fake person and there is no such Scribe at Kilimanoor. Inspite of raising such a contention, no attempt was made by the appellants to examine the Scribe who prepared the Will. Obviously, that is a suspicious circumstance as has been found by the courts below. Admittedly, Ext.A1 is not a registered Will and appellants disputed the execution of the Will by the deceased. Ext.X3 report is also received from the Forensic Science Laboratory, Thiruvananthapuram and as per the report, disputed signatures in the Will is not having any similar handwriting characteristic R.S.A.No.932 of 2019 11 with those found in the admitted signatures of late Janardhanan. So, the report of the expert is not favourable to the appellants. The first appellate court, on analysing the report, found that some differences were detected as per Ext.A3 report in the characteristic of “K, J, a, n” in the disputed writings and admitted handwritings. No steps were taken by the appellants to examine the expert and question him regarding the report filed by him. As such, the expert's report will not, in any way aid the appellants to prove the acceptability of Ext.A1. 8. Execution of the Will in a stamp paper by late Janardhanan who was a retired Surveyor is also taken as a circumstance which creates doubts regarding the execution of Ext.A1. So also, the appellants have got a case that late Janardhanan and the respondents were not in cordial terms and that was the reason for excluding them. But the appellants could not adduce any evidence to prove the said fact. So, on an overall evaluation of the facts and circumstance and evidence, I am of the considered view that the courts below meticulously considered the facts and circumstances and evidence in a correct 12 R.S.A.No.932 of 2019 perspective and found that appellants failed to prove the execution of Ext.A1 Will by deceased Janardhanan. Moreover, I have already found that R.S.A itself is hit by the principles of res judicata, since no appeal has been filed against the concurrent judgment and decree in O.S.No.101/2001. 9. I am of the view that courts below rightly decreed the suit and ordered partition of the plaint schedule properties. I do not find any substantial question of law emerging for consideration for entertaining the second appeal. In the result, appeal is found to be devoid of merit and hence dismissed. In the facts and circumstances, there is no order as to costs. (sd/-) **M.R.ANITHA, JUDGE** jsr/ True Copy P.S to Judge