Subramanian v. Vasu

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH** **TUESDAY, THE 3RD DAY OF APRIL 2012/14TH CHAITHRA 1934** ## **RSA.No. 389 of 2006 ( )** **----------------------AS.120/2000 OF II ADDITIONAL DISTRICT COURT, PALAKKAD. OS.328/1992 OF ADDITIONAL MUNSIFF COURT, PALAKKAD.** **.................** ## **APPELLANT/RESPONDENT/PLAINTIFF::** **----------------------------------------------------------** **SUBRAMANIAN, AGED 58 YEARS, S/O. KUNDUKATTIL CHEAMI, PUTHUR AMSOM, PALAKKAD TALUK.** ## **BY ADV. SRI.ABRAHAM JOHN.** ## **RESPONDENT/APPELLANT/DEFENDANT;:** **-------------------------------------------------------------** **VASU, AGED 63 YEARS, S/O. KUNJAPPAN, VENOLI, PUDUSSERY AMSOM, PALAKKAD TALUK.** **BY SRI.R.D.SHENOY, SENIOR ADVOCATE. ADV. SRI.T.C.SURESH MENON.** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 03-04-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **rs.** ## **THOMAS P.JOSEPH, J.** **==================================== R.S.A. No. 389 of 2006 ==================================== Dated this the 03[rd] day of April, 2012** ## **J U D G M E N T** This Second Appeal arises from the judgment and decree of the learned Additional Additional District Judge, Palakkad in A.S. No.120 of 2000 reversing the judgment and decree passed by the learned Additional Munsiff, Palakkad in O.S. No.328 of 1992 declaring title and possession of appellant-plaintiff in the suit property and restraining the respondents from trespassing into the said property. 2. Appellant-plaintiff claimed title and possession of the suit property as per Ext.A2, registered Will dated 16.08.1979 said to be executed by the late Yesoda @ Ponnamma, W/o.Bslakrishnan (he predeceased Yesoda). The said Yesoda and appellant-plaintiff are the children of the late Chami while Balakrishnan and Vasu are the children of the late Lakshmi, sister of Chami. Balakrishnan, S/o.Lakhsmi married Yesoda @ Ponnamma, daughter of Chami. The suit property and other items belonged to the family of Chami and Lakshmi and while so, it would appear that there was an oral partition between the sharers ## **R.S.A. No.389 of 2006** -: 2 :- as per which properties were partitioned and the sharers got separate possession of their respective shares. While the sharers were in separate possession and enjoyment, Yesoda is said to have executed Ext.A2, Will dated 16.08.1979 bequeathing her property (which she got under the oral partition) to the appellant. That was followed by the sharers executing a registered partition deed (Ext.A1 dated 23.10.1979) in accordance with the oral division and separate possession they had already made and had. Yesoda died in the year, 1989. In the year, 1992 appellant filed the suit for declaration of his title and for injunction on the premise that he is the owner in possession of the property as per Ext.A2, Will. 3. Respondent-defendant denied due execution and attestation of the Ext.A2, Will and claimed that he is in possession of the property. 4. Trial court upheld due execution and attestation of Ext.A2, Will dated 16.08.1979 and granted a decree in favour of the appellant. 5. Respondent challenged that judgment and decree in A.S. No.120 of 2000. The first appellate court in paragraph 14 of its judgment stated that on a comparison under Section 73 of the ## **R.S.A. No.389 of 2006** ## -: 3 :- Evidence Act (for short, “the Act”) there is marked difference between the admitted signature of Yesoda @ Ponnamma in Ext.A1, partition deed dated 23.10.1979 and her disputed signature in Ext.A2, Will dated 16.08.1979, found that there are suspicious circumstances which according to the first appellate court, appellant was not able to remove and consequently held that due execution and attestation of the Will are not proved. Consequence was that the appeal was allowed and judgment and decree of trial court were set aside. O.S. No.328 of 1992 was dismissed. Hence this Second Appeal. 6. The following substantial questions of law are framed for a decision. (i) In view of Section 40 of the Registration Act and Section 114(3) of the Act, can a registered will be considered as a fabricated document in the absence of strong rebuttal evidence adduced by the opposite party? (ii) In the matter of a Will whether the bequeathal of an undivided interest over the property is a suspicious circumstance to invalidate the **R.S.A. No.389 of 2006** -: 4 :- document? (iii) If possession of property one by party in an admitted document excludes oral as well as disputed commission report in an issue regarding physical possession? 7. It is contended by the learned counsel for appellant that finding of the first appellate court that there is marked difference in the admitted signature of Yesoda in Ext.A1, partition deed and the disputed signature in Ext.A2, Will is not correct. It is contended that at any rate merely based on a naked eye examination of the admitted/disputed signatures under Sec.73 of the Act, first appellate court ought not to have entered a finding that there is no due execution of Ext.A2, Will dated 16.08.1079. Learned counsel contends that none of the circumstances pointed out by the respondent are suspicious as understood by the various decisions on the point. According to the learned counsel a circumstance is suspicious only when in the normal course a reasonable and prudent man would not do such an act. It is pointed out that the fact that Ext.A2, Will is registered would add to the contention of appellant that it is duly executed and **R.S.A. No.389 of 2006** ## -: 5 :- attested. Learned counsel has placed reliance on the decisions in **Pappoo v. Kuruvila** (1994 (2) KLT 278), **Varghese v. Oommen** (1994 [2] KLT 620) and **V.S. Mane v. R.V. Ganeshkar** (AIR 1995 SC 2086). It is contended by the learned counsel that Yesoda was aged only 40 years at the time Ext.A2, Will was executed on 16.08.1979, she died ten years thereafter and in the circumstance there is no reason to think that almost 10 years before her death at a time when she was hale and healthy, Ext.A2 was fabricated as contended by the respondent. Learned counsel referred me to the evidence of P.W.2, the attester to show that there is due execution and attestation of the Will. It is contended that when the Will was executed there were litigations between the members of the family and evidence revealed that respondent had even ill-treated Yesoda and hence she thought of executing the Will to exclude the respondent from inheritance. Leaned counsel has contended that in the circumstances first appellate court was not correct in reversing the finding entered by the trial court regarding due execution and attestation of Ext.A2, Will. 8. Learned Senior Advocate for the respondent would contend that first appellate court has found that there is marked ## **R.S.A. No.389 of 2006** ## -: 6 :- difference in the admitted signature of Yesoda in Ext.A1, partition deed and the disputed signature in Ext.A2, Will. It is also contended that Ext.A2, Will was executed on 16.08.1979 while Yesoda, the executant of Ext.A2 got absolute right over the property only by Ext.A1, partition deed dated 23.10.1979. According to the learned Senior Advocate there are suspicious circumstances surrounding the due execution and attestation of Ext.A2, Will. 9. So far as execution of Ext.A2, Will dated 16.08.1979 even before and Ext.A1, partition deed dated 23.10.1979 is concerned, learned counsel for appellant has invited my attention to the recitals in Ext.A1 which is that even before that document was executed and registered, parties thereto had effected an oral division of the properties, accordingly they were in separate possession and enjoyment and they thought it fit that a document is executed and registered in accordance with the oral division they had made and separate possession they had. It is accordingly that Ext.A1 was executed on 23.10.1979. Hence there is nothing wrong in Yesoda executing A2, Will even prior to Ext.A1, partition deed dated 23.10.1979, it is contended. I find some weight in that argument. ## **R.S.A. No.389 of 2006** -: 7 :- 10. The crucial question is whether due execution and attestation of Ext.A2, Will is proved by the appellant, its propounder? P.W2 is one of the attesters in Ext.A2 and gave evidence in support of its due execution and attestation. P.W.2 stated that the document was signed at the office of the Scribe where the contents of the document were read over and explained to Yesoda before she signed it. 11. So far as exclusion of respondent from inheritance is concerned evidence given by the appellant as P.W.1 is that respondent had ill-treated Yesoda during the relevant time. In cross-examination appellant as P.W1 stated that Ext.A2, Will was executed earlier (at a time when Yesoda was only 40 years) on account of the respondent harassing Yesoda. 12. Trial court has taken the view obviously based on the evidence of P.W2 that the Will was executed by Yesoda and attested by him. The first appellate court has taken a different view as seen from paragraph 14 of its judgment observing that there is marked difference between the admitted/disputed signatures in Exts.A1 and A2. 13. I am not expressing any opinion on the correctness of the view taken by the courts below regarding due execution ## **R.S.A. No.389 of 2006** ## -: 8 :- and attestation of Ext.A2, Will or as to the so called difference in the admitted/disputed signatures in Exts.A1 and A2. But it appears to me that the reasonable and prudent course was to get the opinion of an Expert as to the authenticity of signature in Ext.A2. A Division Bench of this Court in **Sumangala T.Pai** **v. Sundaresa Pai** (1991 [1] KLT 246) has held that opinion of the Expert as to identity of signature of the testator of the Will is relevant for a decision. Having regard to the facts circumstances of the case I am inclined to opt for that course. 14. In the light of my above view findings entered by the courts below as regards execution and attestation of Ext.A2, Will and of the first appellate court as to the dissimilarity in signature, suspicious circumstance, etc., have to be vacated leaving it open to the trial court to decide the matter afresh after getting the opinion of the Expert regarding authenticity of the disputed signature in Ext.A2 after comparison with the admitted signature in Ext.A1 and other admitted signatures if any, of the contemporaneous period. 15. In the above view, it is not necessary to answer the substantial questions of law raised. 16. Second Appeal is allowed as under: ## **R.S.A. No.389 of 2006** -: 9 :- (i) Judgment and decree of learned Additional District Judge, Palakkad in A.S. No.120 of 2000 and of learned Additional Munsiff, Palakkad in O.S. No 328 of 1992 are set aside. (ii) O.S. No.328 of 1992 is remitted to the trial court for fresh decision after getting the opinion of an Expert (to be appointed by the learned Munsiff) on the authenticity of the disputed signature in Ext.A2 after comparison with the admitted signature in Ext.A1 and other contemporaneous admitted signatures of the testator, if any available. (iii) Expense for obtaining opinion of the Expert shall be met by the appellant and that shall form part of the costs based on the decision in the suit. (iv) It is made clear that It is open to the parties to adduce further evidence if any on the disputed questions. (v) After getting such opinion and recording further evidence, if any trial court shall decide the contentious issues as early as possible. ## **R.S.A. No.389 of 2006** ## -: 10 :- (vi) It will be open to the learned Munsiff to appoint a Receiver (if necessary, a party Receiver) to take possession of the suit property in case circumstances warranted that or pass other orders in the matter of preserving the suit property, as is required. (vii) Until such orders are passed by the learned Munsiff both sides are directed not to take usufructs from the suit property or commit waste therein. Registry shall send the records of the case to the trial court forthwith. Parties shall appear in the court of learned Munsiff, on 25.05.2012. All pending Interlocutory Applications will stand dismissed. ## **THOMAS P. JOSEPH, JUDGE.** vsv