Kerala High Court
Sebastian vs Rani on 4 July, 2025
Author: Sathish Ninan
Bench: Sathish Ninan
2025:KER:48811
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR
FRIDAY, THE 4TH DAY OF JULY 2025 / 13TH ASHADHA, 1947
RFA NO. 17 OF 2015
AGAINST THE JUDGMENT DATED 18.09.2014 IN OS NO.185 OF 2010 OF
SUB COURT, KOCHI
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APPELLANTS/PLAINTIFFS:
1 SEBASTIAN,
AGED 56 YEARS,
S/O.LAWRENCE, MALIYAKKAL HOUSE, PALLURUTHY SOUTH,
PERUMPADAPPU, PALLURUTHY VILLAGE,KOCHI TALUK,
KOCHI 682 006.
2 LAWRENCE KUNHI, AGED 23 YEARS,
S/O.SEBASTIAN, MALIYAKKAL HOUSE, PALLURUTHY ,
PERUMPADAPPU, KOCHI 682 006.
3 DIVYA ANNIE, AGED 19 YEARS,
D/O.SEBASTIAN, MALIYAKKAL HOUSE, PALLURUTHY,
PERUMPADAPPU, KOCHI 682 006.
4 JULIET,
AGED 46 YEARS,
W/O.SEBASTIAN, MALIYAKKAL HOUSE, PALLURUTHY,
PERUMPADAPPU, KOCHI 682 006.
BY ADVS.
SRI.N.N.SUGUNAPALAN (SR.)
SRI.S.SUJIN
2025:KER:48811
RFA NO. 17 OF 2015 -2-
RESPONDENTS/DEFENDANTS:
1 RANI, AGED 54 YEARS,
WIDOW OF DECEASED TOMY LAWRENCE,
RESIDING AT HOUSE NO. CCXI/3238 (OLD NO.18 2360),
'KONNOTH HOUSE', NEAR KOCHUPALLY,THOPPUMPADY,
KOCHI 682 005.
2 TUTTUMON TONY LAWRENCE, AGED 20 YEARS,
S/O.LATE TOMY LAWRENCE,
RESIDING AT HOUSE NO.CCXI/3238 (OLD NO.18 2360),
KONNOTH HOUSE,
NEAR KOCHUPALLY,THOPPUMPADY,KOCHI 682 005.
BY ADVS.
SRI.K.N.SIVASANKARAN
SHRI.SUNIL SHANKER
THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON
04.07.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2025:KER:48811
SATHISH NINAN &
P. KRISHNA KUMAR, JJ.
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R.F.A. No.17 of 2015
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Dated this the 4th day of July, 2025
J U D G M E N T
Sathish Ninan, J.
The suit for partition was dismissed by the trial court. The plaintiffs are in appeal.
2. The first plaintiff is the brother of late Tomy Lawrence. The other plaintiffs are the wife and children of the first plaintiff. The defendants are the wife and son of Tomy Lawrence. The properties sought to be partitioned belonged to late Tomy Lawrence. Tomy Lawrence died on 08.05.2010.
3. The plaintiffs claim that Tomy Lawrence had executed Ext.A1 Will dated 04.05.2010 bequeathing his assets. As per the bequest, the plaintiffs are given shares over his assets along with the defendants. The plaintiffs seek for partition in terms of the Will.
4. The defendants challenged the genuineness of the Will. It was contended that Ext.A1 Will is not one executed R.F.A. No.17 of 2015 2025:KER:48811 -: 2 :- by him and that the signature in Ext.A1 Will is not that of Tomy Lawrence.
5. The trial court on appreciation of the evidence held that the plaintiffs have failed to prove the due execution and genuineness of Ext.A1 Will. Accordingly the suit was dismissed.
6. We have heard Sri.N.N.Sugunapalan, the learned Senior Counsel for the appellants-plaintiffs and Sri.K.N. Sivasankaran, the learned counsel for the respondents- defendants.
7. The points that arise for determination in this appeal are :-
(i) Does the evidence on record substantiate the due execution and genuineness of Ext.A1 Will?
(ii) Has the plaintiffs succeeded in dispelling the suspicious circumstances if any surrounding the Will?
(iii) Does the decree and judgment of the trial court warrant any interference?
8. As per the bequest under Ext.A1 Will, the first defendant, who is the wife of Tomy Lawrence is entitled for an amount of ₹ 1,000/- from his pension. There is no other bequest in her favour. Plaint schedule item Nos.4 and 5 is R.F.A. No.17 of 2015 2025:KER:48811 -: 3 :- bequeathed in favour of the first plaintiff. Out of the plaint 'B' and 'C' schedule, which are amounts due, the plaintiffs have been bequeathed 40%. Plaint 'A' schedule item No.3 has been bequeathed in favour of the second plaintiff. From item No.6 in plaint 'A' schedule an extent of 15 cents is bequeathed in favour of the third plaintiff. The remaining has been bequeathed in favour of the second defendant. Noticeably, the first defendant-wife has been practically disinherited. So also a substantial portion of the assets are bequeathed in favour of the plaintiffs.
9. The learned Senior Counsel Sri.N.N.Sugunapalan submitted that this is a case where the plaintiffs are not the propounders of the Will. Plaintiffs are not the only legatees under the Will. The Will was produced not by them. There is no evidence that the plaintiffs had taken any active role in the execution of the Will. The trial court went wrong in casting the burden on the plaintiff to prove the signature of late Tomy Lawrence on Ext.A1 Will. The defendants having urged that the signature is forged, it is for them to prove it. The trial court also committed R.F.A. No.17 of 2015 2025:KER:48811 -: 4 :- jurisdictional error in having not framed an issue with regard to execution of the Will. The evidence on record reveals that Tomy Lawrence and the defendants were living separately for the past several years and was being taken care of by the plaintiffs, which prompted the late Tomy Lawrence to execute Ext.A1 Will, it is argued.
10. We are unable to agree with the argument of the learned Senior Counsel that the plaintiffs are not the propounders of the Will. The propounder of the Will is a person who puts forward the Will and seeks establishment of rights under the Will. The mere fact that the Will was not marked in evidence through the plaintiffs or that there are other legatees under the Will does not mean that they are not the propounders. It is the plaintiffs who seek for establishment of rights under the Will and are its propounders.
11. Ext.A1 Will is unregistered. PW1 is one of the attestors (attestor No.2) to Ext.A1 Will. PW2 is the custodian of the Will, the person to whom late Tomy Lawrence is claimed to have entrusted the Will. PW3 is the first R.F.A. No.17 of 2015 2025:KER:48811 -: 5 :- plaintiff. The first defendant was examined as DW1. The Assistant Commissioner of the Commercial Tax Department was examined as DW2. Tomy who was a lawyer, later became the Assistant Commissioner in the Sale Tax Department.
12. To prove the execution of Ext.A1 Will, the plaintiffs rely on the evidence of PWs.1 and 2. PW1 has spoken in tune with the elements of attestation as mandated under the Evidence Act. He claimed that he and Tomy Lawrence were known to each other since childhood and they were co- workers in few church related organisations; Tomy was the treasurer and legal advisor at that time. In his cross- examination also he asserted that he was close to Tomy Lawrence since younger days. It has come out in cross- examination that he studied only till 7 th standard and he does not know in which class he was studying when Tomy Lawrence studied in the school. He also deposed that the period during which they were co-workers in the organisations was 36 years back. At the time of examination, PW1 was aged 48 years. Therefore, he would have been aged only 12 years during the time when it is claimed that they R.F.A. No.17 of 2015 2025:KER:48811 -: 6 :- were co-workers in certain organisations.
13. PW1 claimed that he was very close to Tomy Lawrence and that he used to go to his house once in a week. However, he pleaded ignorance as to when Tomy Lawrence bought land and constructed a house. He has not gone for the house warming ceremony. In further cross-examination he would depose that he started going to the tarwad house of Tomy to meet him since the year 2005 only. It has come out in evidence that Tomy Lawrence had an ophthalmic procedure on 03.05.2010, but PW1 was unaware of the same.
14. The evidence of PW1 is to the effect that Tomy Lawrence was suffering from various ailments. But in cross- examination he would depose that for the purpose of execution of Ext.A1 Will Tomy Lawrence came walking and was healthy. He has also deposed that even on the previous day of execution of the Will Tomy went to his office.
15. The claim is that Ext.A1 Will was executed at the residence of PW1. PW1 would depose that, on the previous Sunday while at church he was told by Tomy Lawrence that he is coming home in the evening. But did not disclose the R.F.A. No.17 of 2015 2025:KER:48811 -: 7 :- purpose. On 04.05.2010 evening Tomy Lawrence came with PW2 and the other witness to his house, and the Will was read over and signed. He deposed that after signing Ext.A1 it was put back in the cover and was with Tomy Lawrence. According to PW1, after signing the Will Tomy said, "ആരരെരയെങങ്കിലല വങ്കിശശശ്വാസമുള്ള ആരളെ ഏൽപങ്കിക്കണല എനന്ന് പറഞ."(needs to be entrusted to someone reliable). Here it is to be noticed that Ext.A1 recites that the Will is being entrusted with PW2. Both PWs.1 and 2 has said that the Will was read over by Tomy Lawrence before signing. If the Will contained such a recital then the afore quoted statement of Tomy makes no sense. Further, though Ext.A1 recites that the Will is handed over to PW2, he would depose that the Will was handed over to him at the road near the house of PW1, that the Will was signed at 6.30 p.m. and it was entrusted to him at about 6.45 to 7.00 p.m. The above, tells upon the acceptability and reliability of the evidence.
16. PW2 is the uncle of first plaintiff and Tomy Lawrence. A reading of his evidence would indicate that R.F.A. No.17 of 2015 2025:KER:48811 -: 8 :- without disclosing the purpose, he and the other witness were taken to the residence of PW1 where the Will was executed. None of them were aware of the purpose for which their presence was required at the residence of PW1. The Will was typewritten and brought by Tomy Lawrence to the residence of PW1. Their consent to be witnesses to the Will was not obtained previously. However, in Ext.A1 Will, the names and addresses of the witnesses with their house number etc. have been typewritten. Unless all those details were provided to Tomy Lawrence earlier, it could not have found a place therein. So also, the case put forward regarding preparing of such a document without informing and seeking their consent to be witnesses and to keep custody of the Will, cannot be easily accepted.
17. Ext.A34 is the medical report issued from an Ophthalmic hospital. It discloses that late Tomy Lawrence had underwent treatment for advance diabetic retinopathy and Pan Retinal Photocoagulation in both eyes on 03.05.2010. The Will is claimed to have been executed on the evening of 04.05.2010. It is difficult to believe that after undergoing R.F.A. No.17 of 2015 2025:KER:48811 -: 9 :- such procedure on the previous day in both the eyes, he would have went to the house of PW1 and that too late in the day. Late Tomy Lawrence was Deputy Commissioner in the Sales Tax Department. In the absence of any suggestion regarding special reasons it is difficult to accept that he had went to the house of PW1 for the purpose of execution of the Will. There is no case that Tomy Lawrence was a regular visitor at the house of PW1.
18. It is relevant to note that Ext.A1 gives specific details of all the assets of Tomy Lawrence including document numbers, survey numbers and even survey sub- division numbers of the properties, LIC policy numbers, Bank Account numbers etc. However, going by the evidence of the first plaintiff as PW3, the documents were in his custody. He deposed, "നങ്കിങ്ങൾ ഹശ്വാജരെശ്വാക്കങ്കിയെ ആധശ്വാരെങ്ങളല securities ഉല നങ്കിങ്ങൾക്കന്ന് എപപശ്വാൾ കങ്കിടങ്കി ? പചേടനുള്ളപപശ്വാൾ തരന എലശ്വാ പരെഖകളല എരന ഏൽപങ്കിചങ്കിരുന. Documents എരനങങ്കിലല പചേടൻ എരന്റെ കയങ്കിൽ നങ്കിനല തങ്കിരെങ്കിച്ചു വശ്വാങ്ങങ്കിയെങ്കിടങ്കില . Documents ഓപരെശ്വാനല കങ്കിട്ടുപമശ്വാൾ നങ്കിങ്ങരളെ ഏൽപങ്കിക്കശ്വാറശ്വായെങ്കിരുനപവശ്വാ ? അരത witness adds:- അമ്മയുരടെ രപടങ്കിയെങ്കിൽ വകല. എരന്തെങങ്കിലല ആവശശ്യമുരണ്ടെങങ്കിൽ പചേടൻ എടുകല. പലതവണയുല എടുതങ്കിട്ടുണ്ടെന്ന്. R.F.A. No.17 of 2015
2025:KER:48811 -: 10 :- എന്തെശ്വാവശശ്യതങ്കിനശ്വാണന്ന്? Survey നമർ പനശ്വാക്കശ്വാനുല മറല എടുതങ്കിട്ടുണ്ടെന്ന്. എനശ്വാണവസശ്വാനല എടുതതന്ന് എനന്ന് ഓർമ്മയെങ്കില." Ext.A1 was executed four days before Tomy's death and PW3 does not have a case that all the documents of Tomy were handed over to him during that period. Moreover, his statement that the documents were taken for verifying the survey number, is evidently made to give an explanation as to how Ext.A1 mentions such details. The statement is not worthy of credence.
19. The defendants disputed the signatures in Ext.A1 Will. Ext.X1 series are few official records containing the signatures of Tomy Lawrence. They were summoned by the Court at the request of the defendant. The trial court on a perusal of the same opined that there are similarities with the signatures in Ext.A1. We have also perused the signatures in Ext.A1 and Ext.X1. We noticed that, though all the signatures in Ext.A1 are exactly identical, there is apparent dissimilarity between the ones in the official records and those in Ext.A1. The signatures in Ext.A1 contain two rows of spiral like drawings, one row being just above the horizontal line drawn under the signature, which R.F.A. No.17 of 2015 2025:KER:48811 -: 11 :- is conspicuously absent in the signatures in Ext.X1 official records. We are not to be understood to have ventured to find on the genuineness of the signatures in Ext.A1 by such comparison. We only wanted to notice the above in the light of the observation by the trial court that there are similarities between the signatures in Ext.A1 and the ones in the official records.
20. The learned Senior Counsel for the appellant would contend that when the defendants allege forgery, it was for them to take steps to obtain expert opinion and to prove the contention. The learned senior counsel relied on the judgment of the Apex Court in Meenakshiammal (Dead) through Lrs. & Ors. v. Chandrasekaran & anr. (2005 (1) SCC 280), to canvass the contention.
21. As was noticed supra, the defendants had denied the execution of Ext.A1 Will by Tomy Lawrence and also his purported signature in Ext.A1. The initial burden rests upon the propounder of the Will to prove the due execution of the Will. The suspicious circumstances if any surrounding the execution of the Will also have significance. In Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao And Others (2006 (13) SCC 433), the Apex R.F.A. No.17 of 2015 2025:KER:48811 -: 12 :- Court held, "33. The burden of proof that the will has been validly executed and is a genuine document is on the propounder. The propounder is also required to prove that the testator has signed the will and that he had put his signature out of his own free will having a sound disposition of mind and understood the nature and effect thereof. If sufficient evidence in this behalf is brought on record, the onus of the propounder may be held to have been discharged. But, the onus would be on the applicant to remove the suspicion by leading sufficient and cogent evidence if there exists any. In the case of proof of will, a signature of a testator alone would not prove the execution thereof, if his mind may appear to be very feeble and debilitated. However, if a defence of fraud, coercion or undue influence is raised, the burden would be on the caveator. (See Madhukar D. Shende v. Tarabai Aba Shedage and Sridevi v. Jayaraja Shetty) Subject to above, proof of a will does not ordinarily differ from that of proving any other document."
In Daulat Ram And Others v. Sodha And Others [(2005) 1 SCC 40], the Apex Court held, "In order to assess as to whether the Will has been validly executed and is a genuine document, the propounder has to show that the Will was signed by the testator and that he had put his signatures to the testament of his own free will; that he was at the relevant time in a sound disposing state of mind and understood the nature and effect of the dispositions and that the testator had signed in the presence of two witnesses who attested it in his presence and in the presence of each other. Once these elements are established, the onus which rests on the propounder is discharged. But where there are suspicious R.F.A. No.17 of 2015 2025:KER:48811 -: 13 :- circumstances, the onus is on the propounder to remove the suspicion by leading appropriate evidence. The burden to prove that the Will was forged or that it was obtained under undue influence or coercion or by playing a fraud is on the person who alleges it to be so." In Indu Bala Bose and Ors v. Manindra Chandra Bose and Anr (1982 (1) SCC 20) the Apex Court held that the suspicious circumstances may be even as to the genuineness of the signatures of the testator. The Court held, "Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the court before the court accepts the Will as genuine. Even where circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the court. The suspicious circumstances may be as to the genuineness of the signatures of the testator, the condition of the testator's mind, the dispositions made in the Will being unnatural, improbable or unfair in the light of relevant circumstances, or there might be other indications in the will to show that the testator's mind was not free. In such a case the court would naturally expect that all legitimate suspicious should be completely removed before the document is accepted as the last Will of the testator..." Therefore, though the plea of the objector be one of forgery or coercion or undue influence, the initial burden is on the propounder of the Will to prove that it was validly R.F.A. No.17 of 2015 2025:KER:48811 -: 14 :- executed. The propounder has a further burden to dispel the suspicious circumstances. On the materials available we find that the plaintiff's have failed to discharge the burden of proving the Will. Hence there is no force in the contention that the defendants have failed to prove their allegation of forgery.
22. The learned senior counsel would, relying on the judgments of the Apex Court in Fiza Developers & Inter-Trade (P) Ltd. v AMCI(I) Pvt. Ltd. And Anr (2009) 17 SCC 796), argued that, the trial court failed to raise an issue regarding the execution and genuineness of the Will which was essential and the failure to raise such an issue has caused prejudice to the plaintiffs. While it is true that it is necessary for the courts to raise proper issues for trial and determination, it is also settled law that if the parties went for trial being fully aware of the actual dispute between the parties and led evidence thereon, the mere failure to raise an issue by itself is not of consequence.[See: Nedunuri Kameswaramma v. Sampati Subba Rao (AIR 1963 SC 884), Shaik Mohammed Umar Saheb v. Kaleskar Hasham Karimsab And Others (AIR 1970 SC 61), Guriya Alias Tabassum Tauquir R.F.A. No.17 of 2015 2025:KER:48811 -: 15 :- And Others v. State Of Bihar And Another (AIR 2008 SC 951)]. In the case at hand, the plaintiffs have laid the suit on Ext.A1 Will. When the suit is founded on the Will, it is trite that the propounder has to prove the Will as mandated under law, and also to dispel the suspicious circumstances surrounding the execution of the Will. Here, the defendants in their written statement specifically denied the execution and genuineness of the Will. The very signature of the executant as seen in Ext.A1 was also denied. To secure a decree, it was imperative on the plaintiffs to prove the due execution of the Will and dispel the suspicious circumstances. Therefore, the mere failure to raise an issue regarding the execution and genuineness of the Will cannot be said to have prejudiced the plaintiffs. The said contention cannot be sustained.
23. A reading of the pleadings and the evidence on the part of the plaintiffs indicate that their endeavour all throughout was to make it appear that the first defendant had abandoned Tomy Lawrence and they were living separately for over 23 years, prompting him to exclude the first R.F.A. No.17 of 2015 2025:KER:48811 -: 16 :- defendant from the bequest. On a reading of the entire evidence it comes out that, Tomy Lawrence was a Deputy Commissioner in Sales Tax Department who had to undertake a lot of travel. After the marriage, he had constructed a house. A property was purchased in the name of the wife. Life Insurance Policies were taken in the name of the wife. The second defendant was born in the wedlock eight years after the marriage; first defendant deposed that she had undergone treatment for pregnancy. The first defendant's father was sick and had his leg amputated. He needed support. The defendants were mostly at the fist defendant's house. The defendants produced a series of photographs during the period 1992 till 2010 which depict the presence of Tomy Lawrence and the defendants together as a family, on various occasions. One such photograph was admittedly taken in the year 2010 on the occasion of confirmation ceremony of the second defendant. Even going by the plaintiff's case, Tomy Lawrence was taking care of the defendants well by providing all necessaries, supplies and money. While the evidence on record would give an impression that all was not R.F.A. No.17 of 2015 2025:KER:48811 -: 17 :- so well in the family, still there is nothing to indicate that Tomy Lawrence and the first defendant had fell apart. When during his life time Tomy Lawrence was providing well for his wife, it is difficult to accept that he would have intended not to provide her anything for her on his death. There is no evidence to find that the relationship between Tomy Lawrence and the first defendant was strained to such an extent that Tomy Lawrence would decide to disinherit the first defendant. Disinheriting the first defendant in toto, creates suspicion.
24. Though the plaintiffs suggest that Tomy Lawrence was suffering from various ailments and that the plaintiffs were always attending to his needs, even going by their evidence but for a heart attack which was suffered to by Tomy Lawrence, which even the first defendant has mentioned, he had no serious issues. Going by the evidence of PW2 Tomy Lawrence had underwent surgery for cataract and had diabetes.
25. Incidentally it is relevant to note that the plaintiff's witnesses were over anxious to make it appear R.F.A. No.17 of 2015 2025:KER:48811 -: 18 :- that Tomy Lawrence had during his life-time provided sufficiently even for the future well-being of the first defendant. PW1 would depose "കൂടെശ്വാരത എലശ്വാ മശ്വാസവല നരലശ്വാരു സലഖശ്യയുല അവരുരടെ ഭശ്വാവങ്കി സുരെക്ഷയശ്വായെങ്കി പടെശ്വാമങ്കി നൽകങ്കിയെങ്കിരുന.". PW2 would depose "മശ്വാസലപതശ്വാറല ഭശ്വാവങ്കി നങ്കിപക്ഷപതങ്കിനന്ന് പവണ്ടെ തുകയുല രകശ്വാടുതങ്കിരുന.". PW3 would depose "കൂടെശ്വാരത അവരുരടെ ഭശ്വാവങ്കി സമശ്വാദശ്യതങ്കിനശ്വായെങ്കി ആ കശ്വാലയെളെവങ്കിൽ... രൂപയുല നൽകങ്കിയെങ്കിരുന.". Evidently, there is an over emphasis on securing the future of the first defendant. It is nothing but an attempt to justify her disinheritance. We find the evidence to be artificial. The trial court which had the opportunity to watch the demeanor of the witnesses, found PWs.1, 2 and 3 to be not reliable. On appreciating their evidence we also concur with the view.
26. On the entire analysis of the evidence and circumstances, we concur with the trial court in its finding that the plaintiffs have failed to prove the due execution of Ext.A1 Will and also failed to dispel the suspicious circumstances surrounding execution of the Will. R.F.A. No.17 of 2015
2025:KER:48811 -: 19 :- We find no merit in the appeal. Appeal fails and is dismissed. No costs.
Sd/-
SATHISH NINAN JUDGE Sd/-
P. KRISHNA KUMAR JUDGE kns/-
//True Copy// P.S. To Judge