IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT :
THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH
THURSDAY, THE 7TH JANUARY 2010 / 17TH POUSHA 1931
RSA.No. 1004 of 2009() ---------------------AS.17/2007 of SUB COURT, VADAKARA OS.132/2004 of MUNSIFF COURT, VADAKARA ....................
APPELLANTS/APPELLANTS/PLAINTIFFS AND THIRD PARTY, LEGAL HEIRS OF 4TH PLAINTIFF :
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1. THINDUMMAL MATHU, AGED 79 YEARS, D/O.CHIRUTHA, RESIDING AT ADIYARITHAZHE KUNI HOUSE ( P.O.) AZHIYOOR, (VIA) VADAGARA, KOZHIKODE DISTRICT.
2. AMMURAYANTEVIDA KOUSU, D/O.CHEKKU, AGED 70 YEARS, MUTTUNGAL AMSOM, RAYARANGOTH DESOM MUTTUNGAL POST, VATAKARA TALUK, KOZHIKODE DIST.
3. O.K.POKKAN, S/O.KANNAN, AGED 76 YEARS, OTTAKANDATHIL, EARAMALA AMSOM, ORKATTERY DESOM, P.O.ORKATTERY, (VIA) VADAKARA, KOZHIKODE DISTRICT.
4. O.K.CHANDRAN, AGED 52 YEARS, S/O.POKKAN, OTTAKANDATHIL HOUSE, P.O.ORKATTERY, (VIA) VADAKARA, KOZHIKODE DISTRICT.
5. O.K.MALATHY, D/O.POKKAN, AGED 49 YEARS, OTTAKANDATHIL HOUSE, P.O.ORKATTERY, (VIA) VADAKARA, KOZHIKODE DISTRICT.
6. O.K.LEELA, W/O.ACHUTHAN, AGED 50 YEARS, OTTAKANDATHIL HOUSE, P.O.ORKATTERY, (VIA) VADAKARA, KOZHIKODE DISTRICT.
7. O.K.SAJITH, S/O.ACHUTHAN, AGED 32 YEARS, OTTAKANDATHIL HOUSE, P.O.ORKATTERY, (VIA) VADAKARA, KOZHIKODE DISTRICT.
8. O.K.SAJITHA, D/O.ACHUTHAN, AGED 29 YEARS OTTAKANDATHIL HOUSE, P.O.ORKATTERY, (VIA) VADAKARA, KOZHIKODE DISTRICT.
9. O.K.SAJILA, D/O.ACHUTHAN, AGED 27 YEARS, OTTAKANDATHIL HOUSE, P.O.ORKATTERY, (VIA) VADAKARA, KOZHIKODE DISTRICT.
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10. O.K.SJEESHA, D/O.ACHUTHAN, AGED 25 YEARS OTTAKANDATHIL HOUSE, P.O.ORKATTERY,
(VIA) VADAKARA, KOZHIKODE DISTRICT.
BY ADV. SRI.C.VALSALAN SRI.I.K.RAJU SRI.K.RAKESH ROSHAN SMT.THUSHARA.V
RESPONDENT(S): RESPONDENTS/DEFENDANTS:
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1. PUTHENPURAYIL DEVI, AGED 65 YEARS, D/O.CHIRUTHA, RESIDING AT PADIKKATHAZHE, MUTTUNGAL AMSOM, RAYARANGOTH DESOM,
- (P.O.) MUTTUNGAL, (VIA) VADAKARA, KOZHIKODE DISTRICT.
2. SARADHA, AGED 67 YEARS, D/O.CHEKKU, ERAMALA AMSOM, ADIYOO DESOM, P.O.ERAMALA, VADAKARA TALUK, KOZHIKODE DISTRICT.
3. O.K.RADHA, D/O.POKKAN, AGED 54 YEARS, RESIDING AT OTTAKANDATHIL HOUSE, ERAMALA AMSOM, ORKATTERI DESOM, (P.O.) ORKATTERI, VADAKARA TALUK, KOZHIKODE DISTRICT.
4. THAZHE PUTHENPURAYIL SASI, S/O.KUMARAN, AGED 39 YEARS, MUTTUNGAL AMSOM, RAYANGOTH DESOM, (P.O.) MUTTUNGAL, (VIA) VADAKARA, KOZHIKODE DISTRICT.
5. THAZHE PUTHENPURAYIL PREEJITH, AGED 33 YEARS, S/O.KRISHNAN, MUTTUNGAL AMSOM, RAYANGOTH DESOM, (P.O.) MUTTUNGAL, (VIA) VADAKARA, KOZHIKODE DISTRICT.
6. THAZHE PUTHEN PURAYIL RAJEESH, AGED
- 30 YEARS, P.O.MUTTUNGAL, VADAKARA, KOZHIKODE DIST.
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 07/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
## **THOMAS P. JOSEPH, J.**
**-------------------------------------R.S.A.No.1004 of 2009 -------------------------------------Dated this the 7[th] day of January, 2010.**
## **JUDGMENT**
Appellants are aggrieved by the judgment and preliminary decree for partition in that partition is allowed only in respect of plaint A schedule item No.2, B schedule item No.2 and the plaint C schedule. Accepting the contention of defendant Nos.1 to 3 based on Ext.B1, registered Will dated 7.1.1997 partition in respect plaint A schedule item No.1 and plaint B schedule item No.1 was disallowed. Parties are referred to as plaintiffs and defendants as in the trial court for convenience.
2. Plaint A schedule item Nos.1 and 2 were acquired by Puthenpurayil Nani, it is not disputed as per document Nos.740 of 1976 and 2226 of 1997. She died a spinster and according to the plaintiffs, intestate. The suit properties devolved on plaintiff Nos.1 and 2, deceased Narayani and the defendants. Plaintiff No.3 is the husband and plaintiff Nos.4 to 6 and defendant No.3 are the children of deceased Narayani. They are entitled to a share belonging to the said Narayani. Defendant Nos.1 to 3 agreed that plaint A schedule item No.2 is partiable but contended that plaint A schedule item No.1 and the movables kept in the house thereon are not partiable since as per Ext.B1, registered Will dated 7.1.1997 the said items were bequeathed by Nani in favour of defendant Nos.4 to 6, children of defendant No.1. To prove the due execution and attestation of
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the Will, defendant Nos.1 to 3 examined DWs 1 and 2, one of the attesting witnesses and the scribe. According to the plaintiffs, Nani was mentally unsound for about ten years preceding her death, had no sound disposing state of mind to execute any such Will and hence the Will is not valid. Plaintiffs examined PW1 to prove the same and marked Exts.A1 to A12. Trial court observed that of Exts.A1 to A12, Exts.A10 to A12 are not properly proved and hence cannot be looked into. Trial court, accepting the evidence of DWs 1 and 2 found in favour of due execution and attestation of Ext.B1 and accordingly preliminary decree for partition was passed excluding plaint A schedule item No.1 and plaint B schedule item No.1. That was confirmed by the first appellate court. Hence this Second Appeal urging by way of substantial question of law whether it has been established by defendant Nos.1 to 6 that Ext.B1 is the last Will executed by Nani. It is contended by learned counsel that the courts below have not referred to evidence of PW1 and Exts.A1 to A12 which would show that Nani was not mentally sound for about ten years immediately before her death on 10.10.2003. It is argued by learned counsel that there are suspicious circumstances surrounding the alleged execution and attestation of Ext.B1. It is pointed out that Ext.B1 was allegedly executed at the house of the testator on 7.1.1997 but it was registered only on 22.1.1997. It is also argued by learned counsel that the fact that Nani excluded defendant No.1, her sister from inheritance and instead bequeathed the property to the children of defendant No.1 is suspicious.
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3. DW1, the attesting witness has given evidence that he is residing at 100-120 metres away from the house of Nani who is known to him since long. He has given evidence regarding due execution and attestation of Ext.B1. DW2 is the scribe of Ext.B1. He has given evidence regarding execution and stated that it was as per the instruction given by Nani that he prepared the Will. In cross examination it was suggested to DW2 that at the relevant time Nani was unsound. DW2 answered that he was not able to say about that. But in reexamination he asserted that it was Nani who gave instruction to him to prepare the Will.
4. It is not disputed that on 10.10.2003, the body of Nani was found in a well in the house compound. It was alleged that on account of mental aberration she jumped into the well and committed suicide. Ext.A2 is the first information allegedly given by PW1 in that way. Based on that a case for unnatural death was registered Ext.A1 being the copy of FIR. Police after investigation submitted Ext.A10, final report stating that on account of mental aberration Nani committed suicide by jumping into the well on 10.10.2003. Exts.A3 to A5, A11 and A12 are records connected with the criminal case. PW1 denied that he had told the police that Nani was of unsound mind since about ten years before her death. It is seen from his deposition, a copy of which is given to me by the learned counsel for perusal that in chief examination he only stated that Ext.A2 contains his signature. He was not made to speak about the
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contents of Ext.A2 in chief examination. In cross examination he denied having told the police (as seen in Ext.A2) that Nani was mentally unsound for about ten years. He also denied the relationship with Nani as stated in Ext.A2. It is seen from the evidence of PW1 that the statement attributed to PW1 in Ext.A2, the signed statement was not put to him in his examination on behalf of the plaintiffs even after he denied that he made the crucial statement contained in Ext.A2. So far as a previous statement is concerned when the statement itself is proved it can be taken as pro prio vigore evidence as between the parties to the proceeding but that rule is not available against a witness to the proceeding
[See **Biswanath Prasad and others v. Dwarka Prasad and others**
**(AIR 1974 SC 117)** ]. PW1 is not a party to this case and hence the mere production of Ext.A2 or even PW1 admitting his signature in Ext.A2 is not sufficient to discard the evidence of PW1 with reference to any statement contained in Ext.A2. What remained is Exts.A10 to A12 so far as the plea of plaintiff regarding insanity of deceased Nani is concerned. Ext.A10 is the copy of final report in the criminal case. True, that being a copy of a public document prepared under Section 173 of the Code of Criminal Procedure it can be admitted in evidence even without examining the person who submitted the report. But, I must bear in mind that the final report is the only accusation made by the investigating officer, being the result of his investigation. The question whether result of the investigation is correct or not is another issue. Ext.A10 therefore is not binding on the contesting defendants. Exts.A11 and A12 ought
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not to have even been admitted in evidence without examining the police officer who is said to have recorded it or the persons who are said to have made those statements. Exts.A11 and A12 are the same being copy of the statements recorded under Section 162 of the Code of Criminal Procedure. Persons who are said to have given those statements are not examined. Hence Exts.A11 and A12 are not evidence in the case. Therefore, relying on Exts.A1, A2 and A10 to A12, no finding is possible that deceased Nani was mentally insane as contended by the plaintiffs.
5. Now coming to the evidence on record it is admitted that Ext.B1 was executed on 7.1.1997. Mere fact that it was executed at the house of deceased Nani or that it was registered only on 22.1.1997 cannot by itself result in any suspicious circumstances. She died only on 10.10.2003. There is no case of impersonation in getting Ext.B1 executed. It is not disputed that item No.2 of plaint A schedule was acquired by Nani as per document No.2226 of 1997. Even the plaintiffs cannot dispute that at the time that document was got executed by Nani in the year 1997 (Ext.B1, Will is also executed in 1977)she was of sound mind. A further fact revealed from Ext.B3 is that the said Nani executed a registered document in favour of one Illath Babu and his wife on 30.1.1999. That document is not under challenge. Hence the case of the plaintiffs that Nani was not mentally sound in the year 1997, at the time of execution of Ext.B1 has to fall to the ground as rightly held by the courts
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below. Courts below considered the relevant circumstances and evidence to hold that due execution and attestation of Ext.B1 are proved. It follows that the properties bequeathed as per Ext.B1 are not available for partition. No substantial question of law is involved in the Second Appeal.
Resultantly, the Second Appeal is dismissed in limine.
**THOMAS P.JOSEPH, Judge.**
## **cks**
