IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
THURSDAY, THE 23RD DAY OF JUNE 2022 / 2ND ASHADHA, 1944
RSA NO. 1309 OF 2014
AGAINST THE JUDGMENT IN OS 395/2009 OF PRINCIPAL MUNSIFF
COURT, PALAKKAD
AS 170/2011 OF II ADDITIONAL DISTRICT COURT,PALAKKAD
APPELLANT/APPELLANT/PLAINTIFF:
KAMALAM, AGED 64 YEARS,D/O. SIVARAMAN, KAPPIL
HOUSE, MUNDUR AMSOM AND DESOM, PALAKKAD TALUK AND
DISTRICT.
BY ADVS.
SRI.M.R.VENUGOPAL
SRI.V.MURALIKRISHNA IYER
SMT.DHANYA P.ASHOKAN
RESPONDENT/RESPONDENT/DEFENDANT:
VENUGOPAL, 53 YEARS,S/O. SIVARAMAN, CHULLIKODE,
KAIKATTY POST, KOTHAGIRI, NILGIRI DISTRICT,
TAMILNADU - 643217.
BY ADV SRI.JACOB SEBASTIAN(CAVEATOR)
THIS REGULAR SECOND APPEAL HAVING COME UP FOR
ADMISSION ON 23.06.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
Sathish Ninan, J.
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R.S.A No.1309 of 2014
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Dated this the 23rd day of June, 2022
JUDGMENT
The concurrent dismissal of a suit for partition is under challenge by the plaintiff.
2. Plaintiff and the defendant are siblings(sister and brother). The plaint schedule property belonged to their father and mother. Both the father and mother are no more. The mother predeceased the father. According to the plaintiff, their father had executed Ext A4 Will, bequeathing his one half share over the property in favour of the plaintiff. The remaining one half that belonged to the mother vested with the plaintiff and the defendant in equal shares. On the said claim, the suit is filed for partition of the one half share of their mother.
3. The defendant resisted the suit on the strength of Ext B1 Will executed by their father and Ext B2 Will R.S.A No.1309 of 2014 -: 2 :- executed by their mother where under, the respective shares of the father and mother had been bequeathed in his favour.
4. On appreciation of the evidence, the trial court found that Ext B1 and B2 Wills are genuine, and dismissed the suit. The decree was affirmed in Appeal, against which the Second Appeal is filed.
5. Heard the learned counsel Sri.M.R.Venugopal on behalf of the appellant and Sri. George Sebastian, learned counsel for the respondent, on the following Substantial Question of Law.
"1. Is the evidence on record sufficient to uphold Exts B1 and B2 Wills to be valid?
2. Has there been total misreading of the evidence by the Courts below?"
6. The genuineness of Ext A4 Will in favour of the plaintiff, is not disputed. However, according to the defendant, the father had subsequently, on 24.11.2006, R.S.A No.1309 of 2014 -: 3 :- executed Ext B1 Will revoking Ext A4 and bequeathing his rights over the property to the defendant. The plaintiff challenges the genuineness of Ext B1 Will. Ext B1 is a registered Will. Photograph of the testator is affixed on the Will and was duly attested by the Sub Registrar. It contains the thumb impression of the testator. The mental, physical and testamentary capacity as on the date of Ext.B1 is not denied by the plaintiff. In fact, the plaintiff, while examined as PW1 admits about the mental capacity and health of the father at the time of his death. PW1 admits that during the life time of the father she was given other properties earlier. In Ext B2 Will executed by the mother, it is said that the plaintiff was given in marriage giving sufficient assets towards her share and hence the property is being bequeathed to the defendant. Ext B1 Will mentions that the plaintiff is married and is well settled in life and that the father intends to provide the property to the R.S.A No.1309 of 2014 -: 4 :- son. One of the witnesses to Ext B1 Will has been examined as DW2. Nothing has been brought out in his cross examination to discredit him.
7. As regards Ext B2 Will, the scribe has been examined as DW3 and one of the attesters were examined as DW4. The execution of the Will by the testator is duly proved by their evidence. Except for the contention that it is suspicious as to why the husband did not attest the Will, no reason could be suggested why their evidence could not be accepted. The mere fact that the husband did not attest the Will cannot be said to be a suspicious circumstance. The attestor is their family friend and the parties must have considered him to be the best person to be a witness - an independent witness. That the testator had sound disclosing state of mind at the time of execution of Ext B2 Will is spoken to by the witness. The evidence on record was properly appreciated by the courts below and have held Exts B1 R.S.A No.1309 of 2014 -: 5 :- and B2 Wills to be valid and genuine. The findings are based on materials. There is no perversity in the appreciation of evidence. There is merit in the challenge raised. The substantial questions of law are thus answered against the appellant.
In the result, the Second Appeal fails and is accordingly dismissed.
Sd/-
Sathish Ninan, Judge vdv