Unnikrishnan and Girija v. Parameswaran and Padmavathy

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE SATHISH NINAN MONDAY, THE 7[TH] DAY OF NOVEMBER 2022 / 16TH KARTHIKA, 1944 RSA NO. 792 OF 2005** **AGAINST THE JUDGMENT AND DECREE IN AS 429/2001 OF 3RD** **ADDITIONAL DISTRICT COURT (ADHOC), THRISSUR AGAINST THE DECREE AND JUDGMENT IN O.S 125/2000 OF MUNSIFF** ## **COURT, WADAKANCHERY.** ## **APPELLANTS/RESPONDENTS/DEFENDANTS:** 1 UNNIKRISHNAN, AGED 45,S/O. PATTARA RAMAN, KUNDANOOR DESOM, CHITTANDA VILLAGE, TALAPPILLY TALUK,THRISSUR DIST. 2 GIRIJA, AGED 40, W/O UNNIKRISHNAN, KUNDANOOR DESOM, CHITTANDA VILLAGE, TALAPPILLY TALUK,THRISSUR DIST. BY ADVS. SRI.THIYYANNOOR RAMAKRISHNAN SRI.ARUN KUMAR.P SRI.C.CHANDRASEKHARAN ## **RESPONDENTS/APPELLANTS/PLAINTIFFS:** 1 PARAMESWARAN, AGED 41,S/O. PATTARA RAMAN, KUNDANOOR DESOM, CHITTANDA VILLAGE, TALAPPILLY TALUK,THRISSUR DIST. 2 PADMAVATHY, AGED 50,D/O. PATTARA RAMAN, KUNDANOOR DESOM, CHITTANDA VILLAGE, TALAPPILLY TALUK,THRISSUR DIST. BY ADVS. SRI.MAHESH V.MENON SRI.K.A.SATHEESA BABU THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 07.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **Sathish Ninan, J. ============================== R.S.A No.792 of 2005** **========================== Dated this the 7[th] day of November, 2022** ## **JUDGMENT** The defendants in a suit for prohibitory injunction against trespass are the appellants. The suit, though dismissed by the trial court, was decreed in Appeal. 2. The issue involved in this Appeal is centered around Ext A1 Will dated 07.06.1989, executed by one Raman. The 1[st] plaintiff and defendants are the children of late Raman. The 2[nd] plaintiff is the wife of the 1[st] plaintiff. The plaint schedule property has an extent of 7½ cents. According to the plaintiffs, Raman had executed Ext A1 Will bequeathing the property in their favour. Alleging attempt to trespass, the suit has been filed. 3. The defendants disputed the genuineness of Ext A1 Will. 4. The trial court held that, due execution of the Will as mandated under Section 63 of the Indian R.S.A No.792 of 2005 -: 2 :- Succession Act has not been proved. It was also held that the active involvement of the 1[st] plaintiff, who is the propounder of the Will, in the execution and registration of the Will, is a suspicious circumstance which has not been explained away. Accordingly, the Will was held against and the suit was dismissed. The first appellate court reversed the finding and upheld the Will. 5. Heard the learned counsel on either side on the following substantial questions of law. 1) _Did the First Appellate Court fail to appreciate the suspicious circumstance brought out by the defendants with regard to the involvement of 1[st] plaintiff – propounder of Will, in the matter of execution and registration of the Will?_ 2) _Does the evidence of PW2, the attestor to the Will prove the ingredients under Section 63 of the Indian Succession Act?_ 6. At the time when Ext A1 Will was executed, Raman, the testator was residing with the 1[st] plaintiff. As PW1, he would say that he was unaware of the existence of the Will till it was told to him by his R.S.A No.792 of 2005 ## -: 3 :- mother. However, in cross-examination it has come out that it was he who received the Will from the Sub Registry Office. He has no case that he was not aware about the nature of the document he collected. He would say that he had only accompanied his father to the Sub Registry Office to collect the same. Therefore, the statement of 1[st] plaintiff as PW1, that he was totally unaware of the Will is not correct. That apart, there is contradiction in his statement when he deposed, “A-½ a- cn-¨-ti-j-am-Wv a-c-W-]-{X-s¯]-än A-dn-bp--ó-Xv. 1 1/2 hÀ-j-am-bn A- **v** ” . ½ a-cn-¨n-«v. A-½-bm-Wv ]-d-ªX 7. In one breath, he said that he came to know about the Will after the death of the mother, and in the next breath, he says that it was his mother who told it to him. On the whole, there appears an active attempt to conceal, or plead ignorance, or to justify his involvement in relation to the Will. The trial court rightly noticed it to be a suspicious circumstance. This circumstance could not be explained away by the plaintiffs. R.S.A No.792 of 2005 -: 4 :- 8. As noticed supra, the Will was executed at a time when the testator was residing with the 1[st] plaintiff. Raman had three children namely, the 1[st] plaintiff and defendants 1 and 2. He had 32 cents of property. From the same, 7 ½ cents each were given by him to each of the children, which would show that all his children were treated equally by him. There is no reason, if at all any, brought on record to disinherit two of his children and prefer the 1[st] plaintiff alone. There is no evidence that after the conveyance of properties to the children in equal shares, there arose disputes which prompted the testator to disinherit the other two children – the defendants. No doubt, as contended by the learned counsel for the respondents – plaintiffs, mere disinheritance is not a suspicious circumstance _**(Raveendran C G and Others v. C G Gopi and Others (2015 KHC 616))**_ . In the case at hand, it is not the mere disinheritance which is raised as the suspicious circumstance. The entire circumstances as noted above, stems into a suspicious circumstance. The R.S.A No.792 of 2005 -: 5 :- plaintiffs have failed to explain away the suspicious circumstance. The first appellate court has grossly relied on the presumption of genuineness and of official acts, provided under Section 60 of the Registration Act and Section 114 of the Evidence Act, to uphold the Will. However, it failed to notice that the suspicious circumstance as above, has not been explained by the plaintiffs. It has a material bearing on the finding of the court regarding the Will. Substantial question of law No. _(i)_ is answered accordingly. 9. As regards the proof of due execution of Will, one of the attestors to the Will was examined as PW2. In the chief examination, he would say that the testator had signed before him. However, in the chief examination there is no statement that the other witness saw such execution. In his cross-examination he would say that, the testator affixed the signature in the room of the scribe and that at that time the witnesses were at the veranda. It is also stated that they could see the Will been written. The relevant portion of the deposition R.S.A No.792 of 2005 -: 6 :- reads thus: “cmta-«³ H-¸n«p. ]n-só R§-sf hn-fn¨p. A-Sp-¯mbn-cp-óp. R-§Ä sN-óv H-¸n«p. Adds, cma³ room epw R-§Ä h-cm-´-bn-ep-am-bn-cp-óp. F-gp-Xp-óXv Im-Wm-am-bncp-óp. 2-mw km-£n-bm-bn bqk-^v H-¸n«p.” 10. He would also claim that only three of them were present at the office of the scribe. If that be so it is not known what prevented the witnesses from being with the testator when he signed the Will. Suffice to note that, the evidence does not satisfy the requirements of due ‘execution’ under Section 63 of the Indian Succession Act. 11. The learned counsel for the respondents – plaintiffs would rely on the decision reported in Ammu v. Krishnan and Others 1969 KLT 656 to contend that it is not necessary that the execution must be witnessed by the witnesses but that, a personal acknowledgment of execution by the testator is sufficient. In the case at hand, there is no such contention that the witnesses signed the Will on obtaining personal acknowledgment of R.S.A No.792 of 2005 ## -: 7 :- execution from the testator. Therefore, the said contention also cannot be accepted. I agree with the finding of the trial court that, due execution of the Will in terms of Section 63 of the Indian Succession Act has not proved. Substantial question of law No. _(ii)_ is answered accordingly. 12. Thus, on the findings on the substantial questions of law regarding, suspicious circumstances and proof of execution of Will, as above, the suit is bound fail. Resultantly, the Regular Second Appeal is allowed. The decree and judgment of the first appellate court is set aside. The suit will stand dismissed. Sd/- **Sathish Ninan, Judge** vdv