Subha @ Bhasura and Nidheesh v. Ramesan S/o Veluthakunju and Babitha @ Nidhi D/o Ponnappan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **THURSDAY, THE 30TH DAY OF MAY 2024 / 9TH JYAISHTA, 1946** **RSA NO. 434 OF 2023** **AGAINST THE JUDGMENT AND DECREE DATED 27/08/2022 IN AS NO.16 OF 2015 OF SUBORDINATE JUDGE'S COURT, KARUNAGAPPALLY, ARISING OUT OF THE JUDGMENT AND DECREE DATED 31/01/2015 IN OS NO.277 OF 2012 OF MUNSIFF COURT, KARUNAGAPPALLY** ## **APPELLANTS/APPELLANTS/DEFENDANTS 1 AND 3:** - **1 SUBHA@ BHASURA, AGED 66 YEARS W/O. PONNAPPAN, CHERUKARA, NIDHEESH BHAVANAM, AZHEECKAL P.O, SRAYIKKADU THURA, ALAPPAD VILLAGE, KARUNAGAPPALLY TALUK, KOLLAM, PIN - 690547** - **2 NIDHEESH, AGED 44 YEARS S/O. PONNAPPAN, CHERUKARA, NIDHEESH BHAVANAM, AZHEECKAL P.O, SRAYIKKADU THURA, ALAPPAD VILLAGE, KARUNAGAPPALLY TALUK, KOLLAM - 690 547.** **BY ADVS.B.A.ALOOR HARITHA HARIHARAN(K/1436/2023) K.P.PRASANTH(K/000536/2017) ARCHANA SURESH(K/001409/2018) HASEEB HASSAN.M(K/796/2023) DHANYA K.(K/1242/2023)** ## **RESPONDENTS/RESPONDENTS/PLAINTIFF AND 2ND DEFENDANT:** - **1 RAMESAN S/O. VELUTHAKUNJU, CHERUKARA VEEDU, AZHEECKAL P.O, SRAYIKKADU THURA, ALAPPAD VILLAGE, KARUNAGAPPALLY TALUK, KOLLAM, PIN - 690547** - **2 BABITHA @ NIDHI D/O. PONNAPPAN, CHERUKARA, NIDHEESH BHAVANAM, AZHEECKAL P.O, SRAYIKKADU THURA, ALAPPAD VILLAGE, KARUNAGAPPALLY TALUK, KOLLAM, PIN - 690547** **BY ADVS.HARIKUMAR T S P.B.SAHASRANAMAN(K/121/1984)** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 30.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 ## **R.S.A.No.434 of 2023** ## **C.S.SUDHA, J.** **-----------------------------R.S.A.No.434 of 2023 ----------------------------------------------th Dated this the 30 day of May 2024** ## **J U D G M E N T** This second appeal under Section 100 read with Order XLII Rule 1 CPC filed by the plaintiff/appellant is against the judgment and decree dated 27/08/2022 in A.S.No.16/2015 on the file of the Subordinate Judge's Court, Karunagappally, which appeal in turn is against the judgment and decree dated 31/01/2015 in O.S.No.277/2012 on the file of the Munsiff Court, Karunagappally. The parties and the documents will be referred to as described in O.S.No.277/2012. 2. The suit was one for partition and permanent prohibitory injunction. According to the plaintiff, the plaint schedule property and the old residential building therein belonged to Veluthakunju and Kousalya as per settlement deed no.347/1114 M.E., Karunagappally SRO and as per pattayam no.LA II/191/'85 and LA 3 ## **R.S.A.No.434 of 2023** II/148/'88. The plaintiff, late Ponnappan, Rema and Suneethi are the children of Veluthakunju and Kousalya. After the demise of Veluthakunju, the two sisters of the plaintiff and his mother transferred their right in the plaint schedule property to the plaintiff. The first defendant is the wife and the second and third defendants, the children of late Ponnappan, the brother of the plaintiff. The defendants are entitled to 1/4 right in the property, that is, 6 cents as their share and the remaining 40 cents to the plaintiff. The residential building in the plaint schedule property was constructed with the funds of the plaintiff. The defendants had promised to release their share in the plaint schedule property, but they failed to do so and hence the suit. 3. The second defendant was _ex parte_ . The first and the third defendants filed written statement denying the plaint allegations. According to them, the plaintiff has no right in the plaint schedule property. Veluthakunju as per Ext.B2 Will dated 07/05/1993 bequeathed the entire plaint schedule property to the 4 ## **R.S.A.No.434 of 2023** third defendant. After the demise of Veluthakunju on 30/08/2004, the Will came into force and the third defendant became the absolute owner in possession of the property. All the documents executed and relied on by the plaintiff after the execution of the Will are void and not binding on the defendants. The plaintiff never requested for partition as he has no right in the property. 4. Necessary issues were framed by the trial court and the parties went to trial on the basis of aforesaid pleadings. PW1 was examined and Exts.A1 to A4 were marked on the side of the plaintiff. DW1 to DW3 were examined and Exts.B1 to B10 were marked on the side of the defendants. The trial court found that Ext.B2 Will relied on by the defendants had not been proved and hence decreed the suit. Aggrieved, defendants 1 and 3 took up the matter in appeal as A.S.No.16/2015. The first appellate court by the impugned judgment, confirmed the judgment and decree of the trial court, against which the present appeal has been filed. 5. Heard the learned counsel for defendants 1 and 3/the 5 ## **R.S.A.No.434 of 2023** appellants. 6. The fact that the plaint schedule property belonged to late Veluthakunju and his wife Kousalya, is admitted. The specific case of the defendants is that in the light of Ext.B2 Will, the entire plaint schedule property was bequeathed by Veluthakunju to the third defendant and hence the plaintiff has no right in the property. To a pointed query by this Court to the learned counsel for the defendants/appellants as to whether Ext.B2 Will had been proved by complying with the formalities contemplated under Section 63 of the Indian Succession Act and Section 68 of the Evidence Act, answered in the negative. As far as a Will is concerned, the propounder of the Will must prove by examining one of the attesting witnesses in the Will as per Section 68 of the Evidence Act and also the fact that execution and attestation of Will were effected in adherence to the requirements under Section 63 of the Indian Succession Act, 1925. Due execution of Will cannot be proved otherwise than by recourse to the aforesaid provisions even 6 ## **R.S.A.No.434 of 2023** in the absence of a specific denial of the Will ( **Sarada v. Radhamani, 2017(2) KLT 327** ). Therefore it is the burden on the propounder of the Will to comply with the mandatory provisions, which admittedly has not been complied with and therefore the defendants cannot rely on Ext.B2 Will to claim exclusive right over the property. 7. Further, there are other circumstances also to doubt Ext.B2 Will. Ext.B2 Will is seen dated 07/05/1993. Veluthakunju died on 30/08/2004. Till the filing of the suit in the year 2012, it seems that the Will did not see the light of the day. From the judgment of the trial court it is seen that the same was not produced even along with the written statement filed by the defendants 1 and 3 and it seems to have been produced much later. Why did the defendants not reveal the existence of Ext.B2 Will immediately after the death of the testator or within a reasonable time period and stake their claim in the property ? It is true that merely because the testator had divested all his children and bequeathed the property to 7 ## **R.S.A.No.434 of 2023** one grandchild alone cannot be made a ground to suspect the Will, because normally Wills are executed when the testator intends to bequeath his/her property against the law of succession. However as noticed earlier, the legal formalities to prove the execution of the Will has not been complied with and hence the courts were right in holding that the defendants cannot claim any exclusive right over the property. 8. Finally, the learned counsel for the defendants/ appellants made a fervent prayer to remand the case to enable the defendants to bring in evidence and comply with the statutory formalities to prove the execution of Ext.B2 Will. This is not a case where the trial court had not given such an opportunity to the defendants. Remand can be made only when it is absolutely necessary to meet the ends of justice and not to enable parties to fill up the lacuna or loopholes in the case set up. The trial court and the first appellate court have rightly and properly appreciated the oral and documentary evidence and rejected the contentions of the 8 ## **R.S.A.No.434 of 2023** defendants and decreed the suit. There is no infirmity or perversity in the findings of both the courts. As no substantial questions of law arise, the appeal is liable to be dismissed _in limine_ and hence I do so. Interlocutory applications, if any pending, shall stand closed. Sd/- **C.S.SUDHA JUDGE** ami/