Thankamani and Others v. Surendran and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **THURSDAY, THE 19[TH] DAY OF JANUARY 2023 / 29TH POUSHA, 1944** **RSA NO. 1316 OF 2015** **AGAINST THE JUDGMENT AND DECREE IN AS 290/2001 OF ADDITIONAL DISTRICT COURT, THRISSUR OS 562/1999 OF MUNSIFF COURT, WADAKANCHERY** **-----** ## **APPELLANTS/APPELLANTS 2 TO 6/PLAINTIFFS 2 TO 6:** 1 THANKAMANI, D/O.CHEUPARAMBIL MANAPPU,KANIPPAYYOOR VILLAGE, DESOM,TALAPPILLY TALUK. 2 VISWANATHAN, S/O.CHEUPARAMBIL MANAPPU,KANIPPAYYOOR VILLAGE, DESOM,TALAPPILLY TALUK. 3 SANTHA, D/O.CHEUPARAMBIL MANAPPU,KANIPPAYYOOR VILLAGE, DESOM,TALAPPILLY TALUK. 4 SAILAN, S/O.CHEUPARAMBIL MANAPPU,KANIPPAYYOOR VILLAGE, DESOM,TALAPPILLY TALUK. 5 SOBHANA, D/O.CHEUPARAMBIL MANAPPU,KANIPPAYYOOR VILLAGE, DESOM,TALAPPILLY TALUK. BY ADVS. SRI.P.VIJAYA BHANU SRI.M.GEORGE THOMAS ## **RESPONDENTS/RESPONDENTS/1ST APPELLANT/DEFENDANTS/1ST PLAINTIFF:** 1 SURENDRAN, S/O.CHERUPARAMBIL MANAPPU, KANIPPAYYOOR VILLAGE, DESOM,TALAPPILLY TALUK. 2 SUBHADRA, W/O.P.K.APPU,ROOM NO.10,B.B.KADEEJACHAL, NARDAS NAGAR,THEMBIPPATTA ROAD, BANDHOOP,BOMBAY-400 078. **RSA NO. 1316 OF 2015 -2-** 3 SOBHANA, W/O.CHERUPARAMBIL SURENDRAN,KANIPPAYYOOR VILLAGE, DESOM,TALAPPILLY TALUK. *4 PARUKUTTY, **[DELETED]** W/O.CHERUPARAMBIL MANAPPU,KANIPPAYYOOR VILLAGE, DESOM,TALAPPILLY TALUK. ## ***[THE FOURTH RESPONDENT IS DELETED FROM THE PARTY ARRAY AS PER ORDER DATED 26.05.2015 IN IA 853/2015]** BY ADVS. SRI.K.RAVI PARIYARATH SRI.G.SREEKUMAR CHELUR SRI.VIVEK.JOY.K THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 19.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **SATHISH NINAN, J.** **= = = = = = = = = = = = = = = = = = R.S.A. No.1316 of 2015** **= = = = = = = = = = = = = = = = = = Dated this the 19[th] day of January, 2023** ## **J U D G M E N T** Challenging the concurrent dismissal of the suit for partition, the plaintiffs are in appeal. 2. Plaintiffs 2 to 6 and defendants 1 and 2, are the children of late Manappu and the first defendant. The plaint schedule property belonged to Manappu. He died on 22.01.1992. The demand for partition was refused by the first defendant claiming that Manappu had executed a Will (Ext.X1) on 04.01.1992. Manappu was a cancer patient and was in his last stages at the time when the Will is alleged to have been executed. He was admitted in the hospital and was unconscious during the relevant period and hence could not execute any Will. On these allegations, the suit for partition is filed. 3. The first defendant resisted the suit relying on the Will (Ext.X1) whereunder, Manappu had bequeathed the ## **R.S.A. No.1316 of 2015** -: 2 :- property to him. 4. Before the trial court, the first defendant examined the scribe of Ext.X1 Will, who was also one of its attestors, as DW1. First defendant got himself examined as DW2. The trial court upheld the Will and dismissed the suit. The dismissal was affirmed in appeal. 5. Heard learned counsel Sri.Ajesh K. Sasi on behalf of the appellants and Sri.G.Sreekumar (Chelur) on behalf of the contesting respondents on the following substantial questions of law :- _“(i) Did the Courts fail to consider whether the suspicious circumstances surrounding the execution of Ext.X1 Will has been dispelled by its propounder-the first defendant ?_ _(ii) When it is within the knowledge of the plaintiffs that the claim for partition is sought to be defended based on an alleged Will, could the plaintiffs maintain a mere_ **R.S.A. No.1316 of 2015** -: 3 :- _suit for partition without seeking a relief of challenging the Will ?”_ 6. Ext.X1 Will is dated 04.01.1992. The executantManappu died on 22.01.1992. Admittedly, he was suffering from intestinal cancer and was in the last stages. Ext.A1, the hospital In-Patient Register, evidences that he was admitted in the hospital on 17.12.1991 and was discharged on 14.01.1992. Therefore, at the time of the alleged execution of Ext.X1 Will (04.01.1992) Manappu was hospitalized. The plaintiffs allege that during the relevant period Manappu was lying unconscious. He died within a period of two weeks from the date of Ext.X1 Will. 7. After the death of Manappu, tax in respect of the property was paid jointly in the names of the wife and children till the year 1999. Ext.X1 Will was brought to light only in the year 1999. **R.S.A. No.1316 of 2015** -: 4 :- 8. The first defendant as DW2 had deposed that the ailment of Manappu was beyond cure and hence did not take him for further treatment at the Amala Cancer Centre. It would establish the stage of the ailment. The 4[th] plaintiff who was examined as PW2 has contended that Manappu was lying unconscious from 22.12.1992. Of course, the same is disputed by the defendant. 9. The 4[th] plaintiff-PW2 is the unmarried daughter of Manappu. She is physically handicapped. Under Ext.X1 Will, the first defendant is required to pay an amount of ` 5,000/- to the mother and the 4[th] plaintiff. Not even a right of residence is provided for them in the residential house. 10. Though in the cross-examination of DW2 he would state that the relationship between the father and the mother was strained, pertinently, there was no such contention in the written statement or even a suggestion to the said effect to PW2, the 4[th] plaintiff, when she **R.S.A. No.1316 of 2015** -: 5 :- was examined. Even in the chief examination of DW2 there is no such case. There is no material to show that the relationship was strained. No doubt, the purpose behind execution of Will is to interfere with the normal line of succession; but, an unjust exclusion of heirs, especially the dependent wife and unmarried, handicapped daughter, is definitely a suspicious circumstance. _(See:_ _**Kavita Kanwar v. Pamela Mehta and Ors, AIR 2020 SC 2614** )_ . 11. One of the identifying witnesses to Ext.X1 Will is the first defendant's brother in law and 1[st] plaintiff’s sister’s son. PW2 admits that he does not know the other identifying witness. 12. The 4[th] plaintiff as PW2, had disputed the signature and thumb impression seen in Ext.X1 Will. As regards the thumb impression seen on Ext.X1, she would say that the fingers of Manappu are thin and not as thick as seen in Ext.X1. **R.S.A. No.1316 of 2015** -: 6 :- 13. Though Ext.X1 recites that the first defendant is to pay an amount of ` 5,000/- to the first plaintiff and 4[th] plaintiff within one year, it was not paid. Though DW2 would say that it was offered and refused, there is no evidence regarding that. As noticed above, the Will had not come to light till the year 1999. 14. DW1, who is the scribe of Ext.X1 and one of the attestor therein, though deposed that Manappu was known to him and that he is also the resident of the locality, in cross-examination he would say that he was not aware of the illness and death of Manappu. DW1 would say that he only copied the Will from the draft prepared by his father. How the father came to know about the requirement of execution of the Will for Manappu, when instructions were given, who gave instructions etc. are not in evidence. The father of DW1 was not examined. 15. DW1 would state that Manappu waited for 45 minutes at his office while the fair Will was written. ## **R.S.A. No.1316 of 2015** -: 7 :- It is difficult to believe that the person who was suffering from Cancer and was in his last stages and was admitted in the hospital, would go to scribe's office and wait there for 45 minutes. There is nothing on record to show how Manappu could be taken to the scribe's office when he was an inpatient in the hospital and suffering from such serious illness. No evidence in the said regard are forthcoming. 16. All the above are suspicious circumstances which the first defendant is bound to explain before Ext.X1 Will could be accepted. 17. PW3 is a neighbour of Manappu. He deposed that he visited the hospital twice and that Manappu was lying unconscious. That PW3 is a neighbour of Manappu is not challenged. Though but for the admission register no other records in the hospital is brought on record, an employee from the hospital was examined as PW2 who deposed that but for the admission register, the other **R.S.A. No.1316 of 2015** -: 8 :- hospital records are destroyed after five years. 18. With regard to the suspicious circumstances noted above, there is lack of evidence to dispel the same. The Courts have failed to consider the suspicious circumstances noted above and also the fact that the same have not been explained away by the propounder of the Will. Unless the suspicious circumstances are explained and dispelled, Ext.X1 Will could not have been accepted. _(See_ _**H. Venkatachala Iyengar v. B.N. Thimmajamma & Others AIR 1959 SC 443, Indu Bala Bose and Ors. v. Manindra Chandra Bose and Ors AIR 1982 SC 133, Rani Purnima Debi v. Kumar Khagendra Narayan Deb (1962) 3 SCR 195, Daulat Ram & Ors. v. Sodha & Ors. AIR 2005 SC 233, B. Venkatamuni v. C.J. Ayodhya Ram Singh and Ors, (2006) 13 SCC 449, Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao, AIR 2007 SC 614, Shivakumar v. Sharanabasappa AIR 2020 SC 3102** )._ Substantial question of law _(i)_ is answered accordingly. 19. Sri.G.Sreekumar (Chelur), the learned counsel for the respondents-defendants would contend that, even **R.S.A. No.1316 of 2015** -: 9 :- going by the plaint averments, the plaintiffs were aware about the existence of a Will at least as on the date of the suit and hence, a mere suit for partition without seeking a relief against the Will could not be maintained. 20. I am unable to agree with the argument of the learned counsel. Whether the plaintiffs were aware of the existence of a Will, or whether it was brought to the notice by the opposite side through their pleadings, is not of any relevance. A Will is not a deed of transfer. Section 2(h) of the Indian Succession Act defines Will to be a declaration of the intention of the testator with regard to the mode of succession of his property after his death. Unlike other documents, even if a Will is not disputed in express terms, the propounder of the Will has to prove the same. This is so in terms of the proviso to Section 68 of the Indian Evidence Act. All the suspicious circumstances **R.S.A. No.1316 of 2015** -: 10 :- surrounding the Will have to be dispelled by the propounder. Unless the Court is satisfied about the due execution, attestation and genuineness of the Will, it cannot be acted upon. Therefore, whether there is an express/positive challenge urged against a Will or not is of any consequence. In the claim for partition, if the defendant relies on a Will, it is for him to prove it in terms of Section 68 of the Indian Evidence Act and also to dispel all the suspicious circumstances. On failure to do so a Will could only be ignored. 21. To sum up, whether the Will is foisted in defence, or whether the plaintiffs were, even as on the date of suit, aware of the existence of the Will etc. are not of any significance. Unless the propounder proves the Will and dispels the suspicious circumstances if any, surrounding the same, the Will cannot be upheld _(See citations supra)_ . Therefore, the challenge against the frame of the suit, fails. Substantial question of law ## **R.S.A. No.1316 of 2015** ## -: 11 :- ## _(ii)_ is answered accordingly. 22. For the reasons as discussed supra, Ext.X1 Will is not liable to be upheld. Manappu having died intestate, the property is liable to be partitioned. 23. Manappu and his wife the first plaintiff, had seven children. The 5[th] plaintiff, who is the 4[th] appellant, is no more. He died as a bachelor. His siblings are the legal heirs. The mother who is the first plaintiff is no more. Therefore, the property is to devolve on the six children, each entitled to 1/6 shares. The first defendant has executed a conveyance in favour of his wife the third defendant. The said conveyance can affect only his 1/6 share over the property. 24. Resultantly the decree and judgment of the Courts are set aside. The suit stands decreed as follows:- **R.S.A. No.1316 of 2015** -: 12 :- A preliminary decree for partition is passed declaring 1/6[th] shares each of the plaintiffs 2,3,4 and 6, and each of the defendants 1 and 2 over the plaint schedule property. Parties are entitled to metes and bounds division and separate possession of their respective shares. Equities to be worked out in the final decree proceedings. R.S.A is allowed as above. Sd/- **SATHISH NINAN JUDGE** kns/- //True Copy// P.S. to Judge