VIJAYAKUMAR KAMMATH v. JAYAKUMAR KAMMATH and others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN** **MONDAY, THE 20TH DAY OF JANUARY 2014/30TH POUSHA, 1935** **RSA.No. 728 of 2013 () ----------------------AS 73/2011 of III ADDL.SUB COURT, ERNAKULAM OS 1475/2003 of I ADDL.MUNSIFF COURT, ERNAKULAM** **-----------** **APPELLANT(S)/APPELLANT IN A.S/1ST DEFENDANT IN O.S :- -------------------------------------------------------** **VIJAYAKUMAR KAMMATH AGED 50 YEARS S/O.LATE SRI.V.MURALEEDHARA KAMMATH, C.C NO 36/497 IKKARAPARAMBU, ST.ANTONY'S CHURCH ROAD, KALOOR KOCHI - 17.** **BY ADVS.SRI.R.LAKSHMI NARAYAN SMT.R.RANJINI** **RESPONDENTS/RESPONDENTS IN A.S/PLAINTIFF AND DEFENDANTS 2 TO 7 IN O.S :-** **-----------------------------------------------------------------** **1. JAYAKUMAR KAMMATH, S/O.LATE SRI.V.MURALEEDHARA KAMMATH, RESIDING AT C.C NO 36/497, IKKARAPARAMBU, ST.ANTONY'S CHURCH ROAD, KALOOR, KOCHI - 17.** **2. SARVOTHAMA KAMMATH, S/O.LATE SRI.V.MURALEEDHARA KAMMATH, ASRAMAM ROAD, AZAD ROAD, KALOOR, KOCHI 17** **3. PURUSHOTHAMA KAMMATH, S/O.LATE SRI.V.MURALEEDHARA KAMMATH, IKKARAPARAMBU, ST.ANTONY'S CHURCH ROAD, KALOOR, KOCHI 17** **4. UDAYAKUMAR KAMMATH, S/O.LATE SRI.V.MURALEEDHARA KAMMATH, T.D EAST ROAD, KOCHI 11** **5. PREMA, D/O.LATE SRI. V. MURALEEDHARA KAMMATH, CHERLAI NEAR T.D TEMPLE, MATTANCHERY - 682 002.** **6. BALAKRISHNA RAO, TANE, KANNOR - 670 001.** **7. RAMADEVI, D/O.LATE SRI.V.MURALEEDHARA KAMMATH, KOVILVATTOM ROAD, NEAR FALON LODGE, ERNAKULAM - 682 011.** **R3 BY ADV. SRI.B.M.AJITH R1 BY ADV. SRI.G.SREENIVASA PRABHU** **SRI.S.B.PREMACHANDRA PRABHU** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 20-01-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **jvt** ## **N.K.BALAKRISHNAN, J. -------------------------------R.S.A. No.728 of 2013 --------------------------------Dated this the 20[th] day of January 2014** ## **J U D G M E N T** The first defendant in a suit for declaration and mandatory injunction is the appellant. He is the twin brother of the first respondent. It was stated that their father had 6.448 cents of property with buildings situated thereon. Out of that property, 1.448 cents was already sold to one of his sons. The total extent available with the father was 5 cents with buildings thereon. The father executed Ext.X2 Will on 4.8.1993. It is a registered Will. Evidence was given by PW2, one of the attesting witnesses to prove the due execution and attestation of the Will. The Will was written up in English. The appellant contended that it was concocted by the first respondent. But the evidence to that effect is that the testator know English as well. The courts below have found that the evidence regarding execution and attestation of the Will is acceptable. R.S.A. No.728 of 2013 -: 2 :- 2. Learned counsel for the appellant would submit that the evidence given by PW2, who claimed to have attested the Will cannot be accepted at all since he was actually a person who had close association with PW1 (the beneficiary of the Will) and so, his evidence should have been rejected by the courts below. The fact that PW2 had close relation with PW1 is not a reason to say that his evidence should be rejected. Though PW2 was cross examined in extenso the courts below did not find anything wrong in accepting his evidence. 3. It was also pointed out that though one of the other legal heirs of the deceased testator had sent notice for partition, the plaintiff sent reply denying partition pointing out the existence of the registered Will but the appellant alone contended that Ext.X2 is not a genuine Will. The fact that other legal heirs did not come forward to question the validity of the Will may not be a reason to say that the Will is a genuine one, but on appreciation of evidence the courts below have accepted the evidence and held that there are R.S.A. No.728 of 2013 -: 3 :- no suspicious circumstances surrounding the execution of the Will. As per the Will, the daughters were to be given only amount. It is argued that there are so many circumstances which would show that the testator had every reason not to bequest any movable or immovable property to the appellant. On the other hand, there is evidence to hold that the first respondent and his family were looking after the aged father and that must precisely be the reason which persuaded the deceased to bequest the property in favour of the respondent alone. 4. The decision of this Court in **Velayudhan Nair** v. **Kalliyanikutty Amma** [2006 (1) KLT 884] was relied upon by the learned counsel for the respondents in support of his contention that the burden is on the party who assails the Will on the ground of fraud or misrepresentation to substantiate the same and therefore, when the Will is attacked on the allegation of undue influence, the onus is on the appellant to prove the grounds so alleged by him. The primary burden is always on the propounder of the Will to R.S.A. No.728 of 2013 -: 4 :- prove the execution and attestation of the Will and that it is not surrounded by suspicious circumstances. Learned counsel for the first respondent would submit that the evidence on record would show why the appellant was not given any share in the property. It is also pointed out that the total extent of the property is only 5 cents with buildings thereon. 5. It is also argued by the learned counsel for the first respondent that even if the testator did not provide anything to the appellant still, that will not generate any suspicion to doubt the testament unless there are vitiating circumstances to show that his testamentary capacity was impaired and disposition is not made on his free will. Therefore, if the Will is free from suspicious circumstances, the court cannot sit over the judgment on the dispositions made by the testator over his properties. (vide see the decision of the Division Bench of this Court in **Ajay P. Asher** v. **Kirit P. Asher** [2011 (3) KLT SN 110 (C.No.110)]). 6. It was also pointed out that at one place it was R.S.A. No.728 of 2013 -: 5 :- contended that the Will was brought about by undue influence or misrepresentation and at another place it is stated that the testator was totally incapable of executing a document. That inconsistency was also taken note of to hold that the denial put forward by the appellant is not acceptable. Be that as it may, the evidence regarding execution and attestation of the Will given by PW2 was found convincing and that was accepted by the courts below. I find no legal infirmity in the finding so rendered by the courts below. 7. It is further argued by the learned counsel for the appellant that a mere mandatory injunction cannot be sustained in view of the fact that the evidence would show that the appellant has been in possession of the building in question even during the life time of the testator. It was further pointed out that though the first respondent contended that it was he who granted permission to the appellant to occupy the house that cannot be accepted at all in view of the admission made earlier that the appellant has R.S.A. No.728 of 2013 -: 6 :- been in possession of the building even during the life time of the father. The learned counsel for the appellant argues that the suit should have been for recovery of possession of the suit building and not for a mandatory injunction as if the appellant is only a licensee. I cannot accede to that submission as well. Till the death of the father, the occupation of the plaint schedule house by the appellant can only be as per the permission granted by the father. After the death of the father, it is the first respondent who has to permit the appellant to continue occupation of the house. The word “possession” used in the deposition does not mean that the appellant has been in settled possession of the property so as to sustain his claim that a suit for recovery of possession alone is maintainable. His possession can only be as that of a licensee and so, mandatory injunction granted by the courts below is only to be sustained. 8. Learned counsel for the appellant would submit that the appellant and his family are residing in the house ## R.S.A. No.728 of 2013 -: 7 :- and so, atleast one year time may be granted to vacate the house. Considering all the aspects, I find that the appellant can be granted six months time to vacate the plaint schedule property. In the result, this RSA is dismissed confirming the decree and judgment passed by the courts below. The appellant is granted six months time to vacate the plaint schedule property but on condition that the appellant should file an undertaking affidavit before the trial court within two weeks from today that he will surrender vacant possession of the plaint schedule property within six months from this date and that he will not induct any other person into possession of the plaint schedule property. **Sd/N.K.BALAKRISHNAN, JUDGE.** //True Copy// P.A. To Judge Jvt R.S.A. No.728 of 2013 -: 8 :- The time granted in the judgment dated 20/01/2014 to vacate the plaint schedule property is extended till 31/12/2014 on the appellant paying the amount due under the decree to Additional Respondents 8 and 9 in I.A 1938/2014 (legal heirs of deceased Respondent No.1 in R.S.A) and the appellant is liable to be evicted in case the amount due under the decree is not so paid, as per the order dated 23/09/2014 in I.A 1938/2014 in R.S.A 728/2013. **Sd/Registrar (Judicial)**