Sreedevi Radhakrishnan RadhaKrishna Nivas v. Venugopala Panicker and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **TUESDAY, THE 23[RD] DAY OF JANUARY 2024 / 3RD MAGHA, 1945** **RFA NO. 730 OF 2010** **AGAINST THE JUDGMENT DATED 27.02.2010 IN OS 173/2008 OF ADDITIONAL SUB COURT, NORTH PARAVUR** **-----** ## **APPELLANT/PLAINTIFF:** SREEDEVI RADHAKRISHNAN RADHAKRISHNA NIVAS, THAYYAKKODATHU, VADAKKUMMURI KARA, THODUPUZHA VILLAGE. BY ADVS. SRI.C.E.UNNIKRISHNAN SRI.SAJU.S.A ## **RESPONDENTS/DEFENDANTS 1 AND 3 TO 9:** 1 VENUGOPALA PANICKER, **[DIED; LHS IMPLEADED]*[1]** N/O SIVASANKARA PANICKER, 'KARTHIKA', NEAR P & T QUARTERS, POOTHOL KARA, THRISSUR-680 004. - 2 HARIDAS PANICKER, N/O. SIVASANKARA PANICKER, SREEMURUKA, MANNAM KARA, PARAVUR TALUK-686 561. 3 JAYASANKARA PANICKER, N/O. SIVASANKARA PANICKER, ACHAN VEETTIL, COMPRESSION MUKKU, THRIPUNITHURA-682 301. - 4 AMBIKA THANKAPPAN NAIR, **[DIED; LHS IMPLEADED]*[2]** KRISHNAVILAS, KARIYATHU, NANDIKULANGARA, KIZHAKKEPRAM KARA, KOTTUVALLY VILLAGE-673 572. 5 NANDAKUMARI VISWANATH, **[DIED; LHS IMPLEADED]*[3]** MALOTH VEETTIL, WEST SIDE OF PRIYADARSHINI HALL, THOTTAKKATTU KARA, ALUVA-683 108. **RFA NO. 730 OF 2010 -2-** 6 INDIRA MURALEEDHARAN, SREEMURUKA, MANNAM KARA, PARAVUR VILLAGE-686 561. 7 PUSHPA R.PANICKER, D.12.A. RAJ THOMAS, J.K.ROAD, MINAL RESIDENCY, BHOPAL, MADHYAPRADESH-462001. 8 RASHI R. PANICKER, **[DIED; LHS IMPLEADED]*[4]** D12. A RAJ HOMES, J.K ROAD, MINAL RESIDENCY, BHOPAL, MADHYAPRADESH-462001. ## ***[1] ADDL. RESPONDENTS 9 TO 11** ADDL. R9 SYAMALA VENUGOPAL, 'KARTHIKA', NEAR P&T QUARTERS, POOTHOL, THRISSUR 680004. ADDL. R10 VENUGOPAL DILEEP CHANDRAN 'KARTHIKA', NEAR P&T QUARTERS, POOTHOL, THRISSUR 680004. ADDL. R11 DEEKSHITHA VENUGOPAL, 'KARTHIKA', NEAR P&T QUARTERS, POOTHOL, THRISSUR 680004. ## ***[2] ADDL. RESPONDENTS 12 & 13** ADDL. R12 JASYASREE K.A., D/O THE LATE AMBIKA THANKAPPAN NAIR, AGED 53 YEARS, RESIDING AT KARIYATH KRISHNAVILAS, NANDIKULANGARA, MANNAM PO, NORTH PARAVUR, ERNAKULAM DISTRICT, PIN-683520. ADDL. R13 KRISHNAKUMAR K.T., S/O THE LATE AMBIKA THANKAPPAN NAIR, AGED 53 YEARS, RESIDING AT KARIYATH KRISHNAVILAS, NANDIKULANGARA, MANNAM PO, NORTH PARAVUR, ERNAKULAM DISTRICT, PIN-683520. **RFA NO. 730 OF 2010 -3-** ## ***[3] ADDL. RESPONDENTS 14 TO 16** ADDL. R14 VISWANATHAN, H/O LATE NANDAKUMARI VISWANATH, AGED 80 YEARS, MALOTH HOUSE, VELAMPARAMB ROAD, THOTTAKKATTUKARA PO, ALUVA, PIN 683108. ADDL. R15 RAVI VARMA M.V., S/O LATE NANDAKUMARI VISWANATH, AGED 44 YEARS, MALOTH HOUSE, VELAMPARAMB ROAD, THOTTAKKATTUKARA PO, ALUVA, PIN 683108. ADDL. R16 RISHI SURYA, AGED 17 YEARS, (MINOR) S/O DECEASED ASHA (DAUGHTER OF DECEASED NANDAKUMARI VISWANATH), MINOR GRANDSON REPRESENTED BY HIS GUARDIAN AND GRANDFAHER VISWANATHAN, AGED 80 YEARS, MALOTH HOUSE, VELAMPARAMB ROAD, THOTTAKKATTUKARA PO, ALUVA, PIN 683108. ## ***[4] ADDL. RESPONDENT NO.17** ADDL. R17 RUDRANSH RAJEEV NAIR, AGED 10 YEARS (MINOR), S/O LATE RASHI PANICKER (D/O LATE PUSHPA PANICKER), REPRESENTED BY HIS GUARDIAN AND FATHER RAJEEV NAIR, KRISHNA KRIPA HOUSE, B.NO.XII/737 W, NEPTUNE GARDEN, WEST KADUNGALLOOR PO, ALUVA, ERNAKULAM, PIN-683110. ## ***[1] [LEGAL HEIRS OF DECEASED FIRST RESPOND3NT ARE IMPLEADED AS ADDITIONAL RESPONDENTS 9 TO 11 AS PER ORDER DATED 04/07/2023 IN IA 3/2013 IN RFA 730/2010]** ## ***[2] [LEGAL HEIRS OF DECEASED R4 ARE IMPLEADED AS ADDITIONAL RESPONDENTS 12 & 13 AS PER ORDER DATED 23/11/2023 IN IA NO.5/2023]** ## ***[3] [LEGAL HEIRS OF DECEASED R5 ARE IMPLEADED AS ADDITIONAL RESPONDENTS 14 TO 16 AS PER ORDER DATED 23/11/2023 IN IA NO.2/2023]** ***[4 ] [LEGAL HEIR OF DECEASED R8 IS IMPLEADED AS ADDITIONAL RESPONDENT 17 AS PER ORDER DATED 23/11/2023 IN IA NO.7/2023]** **RFA NO. 730 OF 2010 -4-** BY ADVS. ANOOP.V. NAIR AMEER SALIM SRI.ALUNKAL GEORGE SRI.DEEPAK JOY.K. SRI.K.NARAYANAN PARUR P.B.KRISHNAN THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON 23.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **SATHISH NINAN, J.** **= = = = = = = = = = = = = = = = = = R.F.A. No.730 of 2010** **= = = = = = = = = = = = = = = = = = Dated this the 23[rd] day of January, 2024** ## **J U D G M E N T** Challenging the dismissal of a suit for partition, the plaintiff is in appeal. 2. The plaintiff and the defendants are the children of late Devaki Amma. Devaki Amma died on 07.07.2003. The property sought to be partitioned admittedly belonged to Devaki Amma. The claim for partition is challenged by the first defendant relying on Ext.B1 Will dated 11.08.1995 executed by Devaki Amma. Under Ext.B1, the first defendant is the sole legatee in respect of the plaint schedule property. 3. The trial court upheld the Will. Accordingly the suit for partition was dismissed. 4. I have heard Sri.T.Krishnanunni, learned Senior Counsel for the appellant-plaintiff and Sri.P.B. Krishnan, the learned counsel for the contesting R.F.A. No.730 of 2010 -: 2 :- defendant. 5. The points that arise for determination in this appeal are :- _(i) Is the due execution and attestation of Ext.B1 Will proved by the evidence of its attestors DWs.3 and 4 ?_ _(ii) On the evidence of DWs.3 and 4, is the propounder of the Will entitled to fall upon Section 71 of the Evidence Act for proof of the Will?_ 6. The claim for partition is opposed by the first defendant alone. All the other defendants filed written statement supporting the plaintiff's case and seeking partition and separate possession of their shares. 7. The two attestors to Ext.B1 Will are the husbands of defendants 5 and 7. As noticed above, defendants 5 and 7 also support the plaintiff and seek for partition of their share. Therefore, obviously it is not in their interests that the due execution and attestation of the Will is proved. In fact their R.F.A. No.730 of 2010 -: 3 :- interest would be to the contrary. This fact is not to be overlooked or ignored when the evidence of the attestors-DW3-the husband of the 7[th] defendant, and DW4the husband of 5[th] defendant, are appreciated. 8. The Will is a registered one. It was executed on 11.08.1995. The testatrix-Devaki Amma died on 07.07.2003 ie. after the elapse of eight years from the date of execution of the Will. None of the parties have a case that testatrix was not keeping sound health during the period of execution of the Will. It is in evidence and is not under challenge that the testatrix was educated, and that she was a Muncipal Councillor and a social worker. 9. Ext.B1 Will was shown to PW3 the attesting witness and he was asked whether it is the Will written by Devaki Amma. The witness answered in the affirmative. He also deposed that he has signed as a witness in the Will. When he was asked as to whether he can identify R.F.A. No.730 of 2010 -: 4 :- the signature of the testatrix, he gave an evasive answer that he does not know further about it. The question and answer read thus:- “tZh-In A-½-bp-sS H-¸v I-ïmð A-dnbm-tam (Q). (A) F-\n-¡v A-Xv Iq-Sp-Xð A-dn-bnñ.” On further examination the witness denied having seen the testatrix signing. He was declared hostile, and was cross-examined. He deposed that he is a graduate and that he has the experience of having conducted numerous cases. He has also deposed that he has got executed numerous deeds/documents on behalf of Mannam Kuries and that he has also executed various documents. He would depose that he did not ask the testatrix regarding the nature of the document that is being executed and for which there was no reason. He deposed that he was required to sign the document to witness the execution but that he still did not enquire about the nature of the document. The relevant deposition reads thus :- R.F.A. No.730 of 2010 -: 5 :- “C§-s\ H-cp tUm-Iyp-saâ v D-ïm-¡Ww, Rm³ h-óv hn-äv\-kv sN¿-Ww F-óv ]-dªp. F§-s\ tUm-Iypsaâ v (Q). (A) A-Xv A-dn-bnñ, Rm³ tNm-Zn-¨pw Cñ.” He deposed that he told his wife that both he and the mother had signed a document. It is stated that, though they visited the mother thereafter they did not enquire about the nature of the document. He deposed that he and DW4 stood as witnesses in the document executed by Devaki Amma. The witness would depose that he came to know about the nature of the document, that it is a Will, only at the time of examination. He admitted that it was he who signed as identifying witness in the Will. The deposition of the witness as above would indicate a conscious attempt on his part to see that the Will is not accepted and proved. He is a person who is very much conversant with documentation; still he did not enquire and was not aware of the nature of document, it is claimed. He admitted that Ext.B1 is the Will written by R.F.A. No.730 of 2010 -: 6 :- Devaki Amma. However, regarding the signature of Devaki Amma, he gave evasive answer. That Devaki Amma had executed the Will and that he and DW4 were witnesses to Ext.B1 is admitted by him. The presence of the testatrix and the witnesses at the office of the document writer is discernible from the evidence. 10. The other witness to Ext.B1 was examined as DW4. He is the husband of the 5[th] defendant. He pleaded ignorance whether his wife, the 5[th] defendant, filed written statement in the suit. He admitted regarding the competency of the testatrix and that she was a Councillor. He admitted that he knows the signature of Devaki Amma. He identified the signature of Devaki Amma in Ext.B1. He also identified his signature in Ext.B1. He also deposed that Devaki Amma wrote and registered the Will and that he and DW3 signed therein as witnesses. The relevant depositions read thus:- R.F.A. No.730 of 2010 -: 7 :- “tZh-In A-½-bp-sS H-¸v I-ïmð A-dn-bmw. Ext.B1 is shown to the witness, tZh-In A-½-bp-sS H-¸m-Wv CXv. ..... X-¦-¸³ \m-bÀ F-óv F-gp-Xn H-¸n-«n-cn-¡pó-Xv Rm-\mWv. F-sâ H-¸v Dïv. .....” “tZh-In A-½ hnð-]{Xw F-gp-Xn c-Pn-kv-t{S-Uv B¡n. \n§Ä Hómw km-£n-bm-bn H-¸n«p (Q). (A) AsX. tZh-In A-½-bp-sS ap-¼nð h-¨v Rm\pw ap-c-fo-[-c\pw km-£n H- ¸n«p.” However, in the cross-examination by the plaintiff he would depose that he has some loss of memory and the document might have been executed for sale. In further cross examination by the plaintiff when he was asked as to whether he saw the testatrix signing the document, he pleaded ignorance and said that he does not own up its responsibility. The relevant deposition reads thus :- “tZh-In A-½ H-¸n-Spó-Xv Itïm (Q). (A) A-dn-bnñ, A- Xn-sâ D-¯-c-hm-ZnXzw F-\n-¡nñ. ” It is to be borne in mind that, earlier in the chiefexamination he had categorically admitted the signature R.F.A. No.730 of 2010 -: 8 :- of Devaki Amma in Ext.B1. A reading of evidence of DW4 on the whole would indicate that the testatrix and the witnesses were present at the time of execution of the Will and that they saw each other signing the Will. Evidently, like DW3, DW4 also has put in a conscious attempt to make it appear that he did not see the testatrix signing the Will. However, the evidence of DWs.3 and 4 taken in its entirety would indicate that all the three of them were present together at the office of the document writer, that the Will was duly executed, attested and registered. 11. It is to be noticed that, both DWs.3 and 4 at some point of time during their cross-examination denied or does not vouch to the execution of the Will by the testatrix. Proof of a Will cannot be left to the mercy of the attesting witnesses. Merely because they denied or suggested that they do not recollect its execution and attestation, it is not as if the propounder is R.F.A. No.730 of 2010 -: 9 :- helpless and the Will is liable to be discarded. In such circumstances Section 71 of the Evidence Act comes to aid. Section 71 reads thus:- _“_ _**71** ._ _**Proof when attesting witness denies the execution.—** If the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence.”_ Referring to the judgment of the Apex Court in _**Jagdish Chand Sharma v. Narain Singh Saini (2015) 8 SCC 615**_ , the learned Senior Counsel for the appellant argued that Section 71 of the Evidence Act requires strict construction and that it can be resorted to only in the cases of witnesses denying execution or failing to recollect the execution of the document. 12. As was noticed from the evidence of DWs.3 and 4 above, at one point of time DW3 made a categoric statement “tZh-In A-½ H-¸n-Spó-Xv Rm³ I-ïnñ.” Thereupon the witness was declared as hostile and was cross- R.F.A. No.730 of 2010 -: 10 :- examined. So also, DW4, to a pointed question “tZh-In A- ½ H-¸n-Spó-Xv Itïm (Q).” replied, “A-dn-bnñ, A-Xn-sâ D-¯-chm-ZnXzw F-\n-¡nñ”. Therefore, both the attesting witnesses have denied the execution or at any rate have failed to recollect the execution of the document. Therefore, under such circumstances the first defendant could resort to the mode provided under Section 71 of the Evidence Act for proof of execution. 13. The learned Senior Counsel for the appellant would next contend that, even if Section 71 of the Evidence Act is invoked, still, proof of due execution and attestation in terms of Section 63(c) of the Indian Succession Act as mandatory. The learned Senior Counsel is justified in his contention. Proof under Section 71 does not dispense with proof of the ingredients of due execution and attestation mandated under Section 63(c) of the Indian Succession Act. To prove due execution and attestation the first defendant relies on the evidence R.F.A. No.730 of 2010 -: 11 :- of DW1 who is the document writer. He has deposed that Ext.B1 Will was prepared as instructed by Devaki Amma. He has deposed that Devaki Amma, the witnesses and himself, had signed Ext.B1. He also deposed that all of them have seen each other signing Ext.B1 Will. He has deposed that the testatrix had sufficient memory. Even in cross-examination, he asserted that the testatrix and the witnesses signed in his presence. The credibility of his evidence could not be shaken in the crossexamination. There is no reason to disbelieve his evidence. The requirements of due execution and attestation as mandated under Section 63(c) of the Indian Succession Act has been duly proved by his evidence. 14. Thus, viewed in any manner, it could only be found that the due execution and attestation of Ext.B1 Will has been proved as mandated under law. The finding of the trial court with regard to Ext.B1 Will is based R.F.A. No.730 of 2010 -: 12 :- on the evidence and warrants no interference. 15. Ext.B1 Will having been found to be valid, the claim for partition necessarily has to fail. Resultantly, the appeal fails and is dismissed. No costs. kns/- Sd/- **SATHISH NINAN JUDGE** P.S. to Judge //True Copy//