SUDHA BHAI and others v K.B.LEELA BHAI and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE B.KEMAL PASHA** **MONDAY, THE 10TH DAY OF JULY 2017/19TH ASHADHA, 1939** ## **RSA.No. 190 of 2014 (E) -----------------------** **AGAINST THE JUDGMENT AND DECREE DATED 09-09-2013 IN AS 122/2010 of SUB COURT,KOTTARAKKARA** **AGAINST THE JUDGMENT AND DECREE DATED 30-06-2010 IN OS 311/2008 of MUNSIFF COURT, PUNALUR** **APPELLANTS/APPELLANTS 3 TO 11/DEFENDANTS 3,4,7 TO 9 AND LRS OF D1 AND D2:** **--------------------------------------------------------------** **1. SUDHA BHAI, AGED 59 YEARS, D/O.BHAGEERATHY AMMA, RAGASUDHA, ULIYAKKOVIL CHERRY, KOLLAM EAST VILLAGE, KADAPPAKADA P.O., KOLLAM-691 008.** **2. SUDARSANAN NAIR, AGED 56 YEARS, S/O.NANU PILLAI, KALEEKKETHIL VEEDU, ELIKKATTOOR MURI, PIRAVANTHOOR VILLAGE, PIN-689 696.** **3. SANTHAKUMARI AMMA, AGED 70 YEARS, W/O.BALAKRISHNAN NAIR, AMBADIYIL, ELIKKATTOOR MURI, PIRAVANTHOOR VILLAGE, PIN-689 696.** **4. S.MOLI, AGED 42 YEARS, D/O.BALAKRISHNAN NAIR, AMBADIYIL, ELIKKATTOOR MURI, PIRAVANTHOOR VILLAGE, PIN-689 696.** **5. S.JINKY, AGED 39 YEARS, D/O.BALAKRISHNAN NAIR, AMBADIYIL, ELIKKATTOOR MURI, PIRAVANTHOOR VILLAGE, PIN-689 696.** - **6. SUBHADRAKUMARY AMMA, AGED 74 YEARS, W/O.RAMACHANDRAN NAIR, SINDOORAM, ELIKKATTOOR MURI, PIRAVANTHOOR VILLAGE, PATHANAPURAM TALUK, PIN-689 696. (DIED) (LEGAL REPRESENTATIVES ARE RECORDED)** **RSA.No. 190 of 2014 (E) -----------------------** **7. AABU, AGED 45 YEARS, D/O.RAMACHANDRAN NAIR, SINDOORAM, ELIKKATTOOR MURI, PIRAVANTHOOR VILLAGE, PATHANAPURAM TALUK, PIN-689 696.** **8. AABHA, AGED 37 YEARS, D/O.RAMACHANDRAN NAIR, SINDOORAM, ELIKKATTOOR MURI, PIRAVANTHOOR VILLAGE, PATHANAPURAM TALUK, REPRESENTED BY HER MOTHER 6TH APPELLANT, AS A8 IS MENTALLY RETARDED) PIN-689 696.** **9. VALSALAKUMARY D. AGED 55 YEARS, W/O.VIJAYADHARAN NAIR, TRIVENI, ELIKKATTOOR, PIRAVANTHOOR, PATHANAPURAM TALUK, PIN-689 696.** *** THE SUBMISSION MADE BY THE COUNSEL FOR THE APPELLANTS THAT APPELLANTS 7 AND 8 ARE THE LEGAL REPRESENTATIVES OF DECEASED 6TH APPELLANT IS RECORDED AS PER THE ORDER DATED 06.04.2017 IN R.S.A.NO.190/2014.** **BY ADVS.SRI.P.B.SAHASRANAMAN SRI.T.S.HARIKUMAR SRI.K.JAGADEESH SRI.RAAJESH S.SUBRAHMANIAN** **RESPONDENTS/RESPONDENTS AND ADDITIONAL APPELLANTS 12 AND 13/PLAINTIFF, DEFENDANTS 5 AND 6 AND LRS OF D2: ---------------------------------------------------------** **1. K.B.LEELA BHAI, AGED 70 YEARS, D/O.BHAGEERATHY AMMA, LEELA VIHAR, ULIYAKKOVIL CHERRY, KOLLAM EAST VILLAGE, KOLLAM TALUK, KOLLAM DISTRICT, PIN-691 008.** **2. B.BAIJU, AGED 42 YEARS, S/O.BHASKARAN NAIR, KODIYATTU PUTHEN VEEDU, KALANJOOR MURI, KOODAL VILLAGE, ADOOR TALUK, PIN-689 693.** **3. B.BINU, AGED 38 YEARS, S/O.BHASKARAN NAIR, KODIYATTU PUTHEN VEEDU, KALANJOOR MURI, KOODAL VILLAGE, ADOOR TALUK, PIN-689 693.** **4. VIBOY T.V., AGED 34 YEARS, S/O.VIJAYADHARAN NAIR, TRIVENI, ELIKKATTOOR, PIRAVANTHOOR, PATHANAPURAM TALUK, PIN-689 696.** **RSA.No. 190 of 2014 (E) -----------------------** **5. VIVEK T.V., AGED 28 YEARS, S/O.VIJAYADHARAN NAIR, TRIVENI, ELIKKATTOOR, PIRAVANTHOOR, PATHANAPURAM TALUK, PIN-689 696.** **R1 BY ADVS. SRI.S.RADHAKRISHNAN SRI.S.RAJ MOHAN** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 10-07-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **DSV/-** ## **B. KEMAL PASHA, J.** ===================== R.S.A.No.190 of 2014 ===================== _Dated this the 10[th] day of July, 2017_ ## **J U D G M E N T --------------------** Challenging the concurrent findings entered by the Munsiff’s Court, Punalur in O.S.No.311/2008, followed by those of the Subordinate Judge’s Court, Kottarakkara, in A.S.No.122/2010, defendants 3, 4, 7 to 9 and the legal representatives of defendants 1 and 2 have come up with this Regular Second Appeal. 2. The suit is one for declaration of title, recovery of possession, perpetual injunction and cancellation of the decree in O.S.No.326/1992 of the Munsiff’s Court, Punalur and A.S.No.266/2006 of the R.S.A.190/14 : 2 : District Court, Kollam. The 1[st] respondent before the lower appellate court is the plaintiff. She is the daughter of late Nanu Pillai. Nanu Pillai died on 29.07.1992. Defendants 1 to 4 and the plaintiff are the children of late Nanu Pillai. Defendants 5 and 6 are the children of his predeceased daughter Sukumarikutty Amma. Defendants 7 to 9 are the legal representatives of his deceased son Balakrishnan Nair. 3. Defendants in the suit along with the father of defendants 7 to 9 had earlier filed O.S.No.326/1992, as a suit for partition, seeking the partition of the properties of Nanu Pillai, on an averment that deceased Nanu Pillai died intestate. The plaintiff herein had filed O.S.No.172/1993 for declaration of her title over the said properties covered by O.S.No.326/1992, on an averment that late Nanu Pillai had executed Will No.25/1986 in her R.S.A.190/14 : 3 : favour, thereby bequeathing all the said properties to her. In O.S.No.172/1993, the original of Will No.25/1986 was not produced. Any such Will was not properly proved. Consequently, O.S.No.172/1993 was dismissed. Finding that Nanu Pillai died intestate in respect of the properties, O.S.No.326/1992 was decreed and a preliminary decree for partition was passed. 4. Challenging the decree in O.S.No.326/1992, an appeal was filed before the District Court, Kollam as A.S.No.266/2006. Challenging the dismissal of O.S.No.172/1993, another appeal was filed as A.S.No.333/2006. Both the said appeals were dismissed. 5. According to the plaintiff, when she had an occasion to examine the box, which was being kept by Nanu Pillai, a receipt could be seen, which revealed the deposit of a Will executed by Nanu Pillai R.S.A.190/14 : 4 : at the Sub Registry Office, Kollam. According to her, she could not obtain the original of the earlier Will, and Nanu Pillai had executed the Will involved in this suit disregarding his earlier Will, and has chosen to deposit the subsequent Will executed by him at the Sub Registry Office for safe custody. 6. On enquiry, it was understood that late Nanu Pillai had deposited a sealed cover containing his last Will at the Sub Registry Office, Kollam. Consequently, by producing the copy of his death certificate, the plaintiff applied for the opening of the sealed cover and for the registration of the contents in accordance with law. On 05.09.2007, the sealed cover No.19/1991 was opened in the presence of witnesses and the plaintiff. The contents were read over and then it was registered by the District Registrar (General), Kollam as Will No.144/2007. As per the said last Will, the properties in question were R.S.A.190/14 : 5 : bequeathed by Nanu Pillai to the 1[st] respondent herein and consequently, she filed the present suit. 7. Even though the plaintiff had approached the District Court, Kollam, with review petitions in A.S.No.266/2006 and A.S.No.333/2006, those review petitions were dismissed by the District Court, leaving the plaintiff to have recourse to appropriate legal steps in the matter. 8. The Munsiff’s Court, Punalur decreed the suit. The Subordinate Judge’s Court, Kottarakkara also concurred with the findings entered by the trial court and dismissed the appeal, and hence this Regular Second Appeal. 9. This Court has admitted this Regular Second Appeal on the following substantial questions of law raised in the appeal memorandum: “i) Whether courts below are justified in finding the Will R.S.A.190/14 : 6 : No.144/07 said to have been executed by late Nanupilla is genuine when the suspicious circumstances and the fraud alleged against the execution of the will is explicit from the documents itself? ii) Is not the suit for declaration of title barred by limitation? iii) Whether the courts below are justified in accepting the deposition of the erstwhile counsel of the plaintiff who is presently claiming to be an attesting witness to a Will especially when the earlier suits where prosecuted by the plaintiff through the same counsel based on another will which end up in failure? iv) Whether the plaintiff and the erstwhile counsel who is allegedly aware of a Will, files and pursue a previous litigation on the R.S.A.190/14 : 7 : basis of another Will, is a suspicious circumstance indicating fabrication of the new Will? v) Whether the plaintiff succeeded in proving the will by properly explaining the suspicious circumstances alleged by the defendants so as to attract the declaration of title over the immovable property based on the will?” 10. Heard the learned counsel for the appellants and the learned counsel for the 1[st] respondent. 11. The learned counsel for the appellants has pointed out that in O.S.No.172/1993, one K.Mohan Kumar, Advocate, was the counsel appearing for the present plaintiff, who was the plaintiff in the said suit also. The very same counsel was appearing for the said plaintiff, who was the 1[st] defendant in R.S.A.190/14 : 8 : O.S.No.326/1992. The very same counsel is one of the attestors to Exhibit-X5 Will. According to the learned counsel for the appellants, even then the said counsel, who was one of the attestors, had not revealed anything regarding the execution of ExhibitX5 Will, during the trial of O.S.No.326/1992 and O.S.No.172/1993. According to the learned counsel for the appellants, the same constitute a suspicious circumstance in the execution of Exhibit-X5. 12. It has been further argued that the signatures of the testator in all the pages of ExhibitX5 Will substantially differs from one another, which is another suspicious circumstance. Over and above it, even though the properties are situated within the local limits of the of the Punalur Sub Registry Office, Exhibit-X5 Will was allegedly executed at Kollam and the attestors are also hailing from Kollam. It has been further argued that even though late Nanu Pillai R.S.A.190/14 : 9 : was not in cordial terms with his wife and sons, he was in cordial terms with his two other daughters also. At the same time, the said two daughters were also excluded, when Nanu Pillai had allegedly executed Exhibit-X5. 13. According to the learned counsel for the appellants, the appellants had filed an I.A. before the Munsiff's Court, Punalur, in the suit, for the comparison of the signatures of Nanu Pillai in ExhibitX5 Will with his admitted signatures. The said I.A. was dismissed merely on the ground that the said I.A. was belated. 14. The plaintiff, when examined as PW1, had deposed that she could trace out a receipt from among the belongings of her late father from a box kept by him at her house and immediately thereafter, she enquired about the sealed cover deposited by her father with the number 19/1991 at R.S.A.190/14 : 10 : the District Registrar’s Office, Kollam. By producing the death certificate, she could get it opened in the presence of witnesses and the same was registered by the District Registrar (General), Kollam as Will No.144/2007. It was on getting the contents of the said Will examined, she had chosen to file the present suit. Based on the bequest in Exhibit-X5 Will, the decree passed against her in O.S.No.326/1992, which was upheld by the District Court, Kollam in A.S.No.266/2006 have become nullity in the eye of law and therefore, she has sought for the cancellation of the said decree. 15. The UD Clerk of the District Registrar’s Office, Kollam was examined as PW2. He appeared with Exhibit-X1 authorisation issued by the District Registrar, Kollam. PW2 has also furnished evidence to the effect that late Nanu Pillai had deposited Exhibit-X5(a) sealed cover on 21.11.1991 at the R.S.A.190/14 : 11 : District Registrar’s Office. Exhibit-X2 is the entry in the relevant page of the Register, showing the said deposit of the sealed cover. According to PW2, Nanu Pillai had affixed his signature on Exhibit-X5(a) cover. The cover was opened on 05.09.2007 on the production of the death certificate of Nanu Pillai by the plaintiff. 16. The original Will is Exhibit-X5. Exhibit-X4 is the certified copy of Exhibit-X5 Will. Exhibit-X6 is the copy of the relevant page of the Thumb Impression Register, which contains the thumb impression of Nanu Pillai. Exhibit-X7 is the relevant page of Thumb Impression Register containing the thumb impression of the plaintiff, which was taken during the registration of Exhibit-X5 Will. 17. PW3 is Advocate K.Mohan Kumar. Even though the learned counsel for the appellants has argued that the silence of Advocate K.Mohan Kumar, R.S.A.190/14 : 12 : when he was appearing for the plaintiff in O.S.No.172/1993 as well as the 1[st] defendant in O.S.No.326/1992 regarding the execution of ExhibitX5 is a suspicious circumstance, strangely enough, no such questions were put to PW3 in crossexamination. Over and above it, no pleadings to that effect have been made by the defendants in their written statements. 18. PW3 has clearly proved the attestation of Exhibit-X5 and has brought out all the ingredients of Section 63 of the Indian Succession Act in causing the execution and attestation of Exhibit-X5. PW4 is the scribe of Exhibit-X5. She has explained that late Nanu Pillai had approached her with a copy of an earlier Will and wanted her to prepare another Will in the same lines. Consequently, she prepared ExhibitX5 Will by changing the date alone and that was the only modification of the earlier Will. According to R.S.A.190/14 : 13 : her, after the execution of Exhibit-X5, it was kept in a sealed cover and deposited at the District Registrar's Office after affixing the signature of the testator as well as the attesting witnesses also over the sealed cover. PW4 also identified Exhibit-X5(a) as the sealed cover. 19. The silence of Advocate K. Mohan Kumar, who was appearing for the plaintiff in O.S.No.172/93 as well as the 1[st] defendant in O.S.No.326/1992, regarding the execution of Exhibit-X5 Will, cannot militate against the execution and attestation of Exhibit-X5. In the earlier suits, he had appeared for the very same plaintiff in his capacity as a lawyer. He was not duty bound to express his personal knowledge in a suit like that. Normally, it may be possible that such a person who knew the execution of Exhibit-X5 could have revealed the execution of such a Will. But the said attesting witness had not R.S.A.190/14 : 14 : chosen to reveal anything regarding Exhibit-X5 during the trial of O.S.No.326/1992 and O.S.No.172/93. The fact that the said attesting witness, who was appearing as a lawyer in the said suits, had not revealed anything regarding the execution and attestation of Exhibit-X5, cannot be said to be a suspicious circumstance in the execution of Exhibit-X5. 20. From the evidence of PW2, PW3 and PW4, the execution and attestation of Exhibit-X5 clearly stands proved. It is true that there are variations in the signatures of the testator in Exhibit-X5. At the same time, it is a fact that the testator was old. He had affixed his thumb impression during the registration on the overleaf of Exhibit-X5 and also in the Thumb Impression Register kept at the District Registrar's Office, Kollam. When the attesting witnesses had deposed that they saw the executant R.S.A.190/14 : 15 : affixing his signatures in Exhibit-X5 and that the executant also saw the attestors affixing their signatures in Exhibit-X5 document, it clearly stands proved that Exhibit-X5 was executed by the testator himself. From the evidence of PW4, it has clearly come out that it was the testator himself who had approached her along with the copy of the earlier Will and requested her to prepare Exhibit-X5. Those aspects have not been challenged. In fact, the evidence of the attesting witnesses as well as PW2 have not been seriously challenged in crossexamination. 21. From the evidence available in the suit, it is evident that the variations in the signatures of testators at different pages of Exhibit-X5 cannot be treated as a suspicious circumstance at all when the execution and attestation has been properly proved. Over and above it, more sanctity has to be attached R.S.A.190/14 : 16 : to Exhibit-X5 when it was deposited as a closed Will at the District Registrar's Office, Kollam by the testator himself. The Will was later opened on the production of his death certificate and the contents were read over in the presence of witnesses and immediately after that it was registered as ExhibitX5. It seems that the testator had taken extreme care to deposit the said Will, may be because of the enmity of his wife and sons towards him. Over and above it, it has come out that the original of the earlier Will prepared by him which was also registered was lost from his possession. That may be the reason why he had chosen to deposit ExhibitX5 as a closed Will. 22. Even though it was contended by the appellants that Exhibit-X5 is the outcome of undue influence and coercion, it seems that the appellants have failed to discharge their burden to prove such R.S.A.190/14 : 17 : aspects. Of course, it is the duty of the propounder of the Will to dispel the suspicious circumstances, if any, in the execution of the Will. At the same time, when the propounder discharges such initial onus, the onus will shift on to the other persons who are taking up the contentions regarding the lack of free consent in the sense that it is hit by undue influence or coercion. In such case, the burden will pass on to the defendants to prove that there was lack of free consent in the execution of the Will. 23. The the learned counsel for the 1[st] respondent has relied the decision in Pentakota Satyanarayana & Ors vs Pentakota Seetharatnam [(2005) 8 SCC 67] wherein it was held: “As far as Ex.B9 Will is concerned, the appellants being the propounders, the initial onus will be on them to prove execution of the Will. Thereafter, the onus would R.S.A.190/14 : 18 : shift to the respondents. They have to establish their case of undue influence or coercion. Then the onus would shift to the appellants to remove the suspicious circumstances if any.” Further, it was held in paragraph 23 as follows: “A perusal of Ex.B9 (in original) would show that the signatures of the Registering Officer and of the identifying witnesses affixed to the registration endorsement were, in our opinion, sufficient attestation within the meaning of the Act. The endorsement by the Sub-Registrar that the executant has acknowledged before him execution did also amount to attestation. In the original document the executant's signature was taken by the Sub-Registrar. The signature and thumb impression of the identifying witnesses were also taken in the document. After all this, R.S.A.190/14 : 19 : the Sub-Registrar signed the deed. Unlike other documents the Will speaks from the death of the testator, and so, when it is propounded or produced before a court, the testator who has already departed the world cannot say whether it is his Will or not and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last Will and the testament of departed testator.” 24. Here, in this particular case, the plaintiff, who has propounded Exhibit-X5, could dispel all the suspicious circumstances. The appellants have failed to prove the lack of free consent on the part of the testator in executing Exhibit-X5. The trial court, as well as the lower appellate court have carefully examined all the matters and have arrived at the correct conclusions. R.S.A.190/14 : 20 : 25. Even though this appeal has been admitted by this Court based on the substantial questions of law shown in the appeal memorandum, in fact, no such substantial question of law has arisen in the matter. Matters being so, this second appeal is devoid of merits and is only to be dismissed, and I do so. In the result, this RSA is dismissed. In the nature of this appeal, the parties shall bear their respective costs. All the interlocutory applications in this appeal are closed. Sd/- **B.KEMAL PASHA,** **JUDGE** UL/DSV/12/7/17 // True Copy // ## P.A. To Judge