Rajan P vs Madhu
2021 Latest Caselaw 16209 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
              THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
    WEDNESDAY, THE 4TH DAY OF AUGUST 2021 / 13TH SRAVANA, 1943
                        RSA NO. 444 OF 2021
       [AGAINST THE JUDGMENT AND DECREE DTD. 17.02.2020 IN
A.S.NO.104/2011 OF DISTRICT COURT,PATHANAMTHITTA ARISING FROM THE
JUDGMENT AND DECREE DTED.29.3.2010 IN O.S.NO.208/2006 OF MUNSIFF'S
                           COURT, ADOOR.]
APPELLANTS/APPELLANTS/PLAINTIFFS 1 TO 3:

    1     RAJAN P.
          AGED 39,
          S/O.PODIYAN,PUTHIYADATHU VEETIL,
          MUNDAPALLI MURI,PERINGANAD VILLAGE,ADOOR,PATHANAMTHITTA
          -691551.
    2     THANKAMMA,
          D/O.ADICHAN,AGED 72,THONDAPURATHU KIZHEKETHIL
          VEEDU,PERUR MURI,
          KOTTANGARA VILLAGE,KOLLAM TALUK,KOLLAM-691504.
    3     RADHA,
          D/O.PODIYAN,AGED 41,CHEMMANETTATHU VEEDU,ILAMANNUR
          MURI,ENADIMANGALAM VILLAGE,ADOOR TALUK,PATHANAMTHITTA-
          691524.
          BY ADVS.
          C.S.MANILAL
          S.NIDHEESH
          ACHUT M NAIR


RESPONDENT/RESPONDENT/DEFENDANT:

          MADHU
          S/O.RAGHAVAN, AGED 59,MANNANIKAL VEEDU, PATTOOR MURI,
          NOORANADU VILLAGE, MAVELIKARA TALUK,
          ALAPUZHA - 690504



     THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON
29.07.2021, THE COURT ON 04.08.2021 DELIVERED THE FOLLOWING:
 R.S.A.No.444 of 2021

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                         J U D G M E N T

This appeal is directed against the

judgment and decree dated 17.2.2020 in

A.S.No.104/2011 on the file of the District

Court, Pathanamthitta (hereinafter referred to

as 'the first appellate court') confirming the

judgment and decree dated 29.3.2010 in O.S.No.

208/2006 on the file of the Munsiff's Court,

Adoor (hereinafter referred to as 'the trial

court'). The appellants are the plaintiffs in

the suit. The suit was filed by the appellants

for permanent prohibitory injunction restraining

the defendants from trespassing into the plaint

schedule property. The parties are hereinafter

referred to as 'the plaintiff' and 'the

defendant' in accordance with their status in

the trial court unless otherwise stated. R.S.A.No.444 of 2021

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2. The plaint averments in brief are

hereinbelow:-

The first and third plaintiffs are the

children of Sri.Podiyan who is the son of

Sri.Adichan. Mother of Podiyan and second

appellant Thankamma died and after her death,

Sri.Adichan married Smt.Velumbi. No issues were

born in the wedlock between Sri.Adichan and

Smt.Velumbi. Smt.Velumbi is the second wife of

Sri.Adichan, who is the paternal grandfather of

first and third plaintiffs. The second

plaintiff Smt.Thankamma is the daughter of

Sri.Adichan. The first plaintiff was residing

along with Sri.Adichan and Smt.Velumbi. He was

looking after the affairs of Sri.Adichan and

Smt.Velumbi during their life time. The plaint

schedule items 1 to 3 properties having total

extent of 42.98 ares was owned by Sri.Adichan.

The entire plaint schedule properties were given

to by Sri.Adichan as per settlement deed R.S.A.No.444 of 2021

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2283/1984 and sale deed No.653/1989. The entire

properties were lying in common and Smt.Velumbi

was in physical possession of the property as

absolute owner thereof. Smt.Velumbi and

Sri.Adichan jointly executed Ext.A1 Will deed on

22.9.2004 bequeathing plaint schedule item Nos.

1 to 3 in favour of plaintiffs 1 to 3

respectively. The properties, which are

scheduled in the plaint, are scheduled as item

Nos.1 to 3 properties in the plaint.

Subsequently, Smt.Velumbi died on 30.12.2005 and

after that, plaintiffs and Sri.Adichan were in

joint possession of the property and had

effected improvements therein. The first

plaintiff was residing along with Sri.Adichan in

the building situated in the plaint schedule

item No.1 property for the purpose of looking

after Sri.Adichan. Defendant is the grandson of

the elder sister of Smt.Velumbi. Alleging that

the defendants are taking attempt to forceful R.S.A.No.444 of 2021

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possession of the plaint schedule properties,

the present suit has been filed for injunction

simplicitor restraining the defendant from

trespassing into the plaint schedule property or

from interfering with the possession of the

plaintiffs in any manner by way of decree for

permanent prohibitory injunction.

3. In the written statement filed, the

defendant contended that during the life time of

Smt.Velumbi, she had not executed any Will.

Execution of the alleged Will is denied.

Smt.Velumbi died on 30.12.2005. Prior to three

years, she was suffering from Alzheimers. On

the alleged date of execution of Ext.A1 Will,

the testatrix Velumbi was not having

testamentary capacities. The defendant obtained

absolute right and title over 56¾ cents of

property on the strength of Sale Deed No.1164

dated 30.3.2006. Since the plaintiffs are

making attempt to trespass into the property on R.S.A.No.444 of 2021

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the strength of a forged will, defendant filed a

counter claim to declare the title and

possession of the defendant in the counter claim

schedule property and also to restrain the

plaintiffs from trespassing into the counter

claim schedule property.

4. The plaintiffs filed replication to

the counter claim contending that on 30.3.2006,

Sri.Adichan was aged more than 90 years and he

was totally incapacitated to execute a sale deed

and even if such a sale deed was executed, the

same was as a result of fraud and

misrepresentation. Smt.Velumbi executed the

Will deed with her free consent and volition and

at the time of execution of the will, she was

mentally and physically fit.

5. After formulating the issues, the

trial court examined first plaintiff as PW1.

PWs.2 and 3 were also examined on the side of

plaintiffs and marked Exts.A1 to A9. DWs.1 to 3 R.S.A.No.444 of 2021

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were examined on the side of the defendants and

marked Exts.B1 to B3. Exts.C1 to C4 were also

marked.

6. After analysing the evidence on

record, the trial court held that the plaintiffs

failed to prove the execution of Ext.A1 Will

Deed. The trial court entered a finding that

the defendant purchased the counter claim

schedule property on the basis of Ext.B1 Sale

deed. The trial court dismissed the suit and

decreed the counter claim. Although the matter

was carried in appeal, the same was dismissed.

Hence, this Second appeal.

7. Heard Sri.S.Nidheesh, the learned

counsel for the appellants.

8. Learned counsel for the appellants

contended that the two courts below were not

right in holding that the venue of execution of

the Will stated in the document and the actual

place of execution being different is a R.S.A.No.444 of 2021

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suspicious circumstance, especially when

extrinsic evidence as to the actual venue of

execution will not militate against the document

particularly the same is permissible by virtue

of the 6th Proviso to Section 92 as well as

Section 95 of the Evidence Act. According to the

learned counsel, merely because the attesting

witnesses are close relatives of the testator by

itself is a legal infirmity.

9. Parties are Hindus. Sri.Adichan's

first wife died. Subsequent to her death,

Sri.Adichan married Smt.Velumbi. Smt.Velumbi

also died on 30.12.2005. Subsequent to the

death of Smt.Velumbi, the entire plaint schedule

properties were devolved upon her husband

Sri.Adichan as per Section 15(1)(a) and Section

16 of the Hindu Succession Act. As per Ext.B1

sale deed, Sri.Adichan sold counter claim

schedule property in favour of the defendant on

30.3.2006. Subsequent to Ext.B1 sale deed, R.S.A.No.444 of 2021

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mutation was effected in respect of the

counterclaim schedule property in the name of

the defendant and he paid tax to the counter

claim schedule property by virtue of Ext.B2.

10. Indisputably, at the time of death

of Smt.Velumbi, the entire plaint schedule

properties were owned by her. It is the case of

the plaintiffs that prior to her death, she

bequeathed the entire plaint schedule properties

in favour of plaintiffs 1 to 3 by way of Ext.A1

Will deed dated 22.9.2004. Consequent to the

death of Smt.Velumbi, according to the

plaintiffs, the first plaintiff was residing

along with Sri.Adichan and Smt.Velumbi and

looking after their affairs. The execution of

Ext.A1 Will Deed was seriously challenged by the

defendant. On a perusal of Ext.A1 and evidence

let in, the trial court and the first appellate

court concurrently held the following points:- R.S.A.No.444 of 2021

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(a) Testatrix Smt.Velumbiwas incapacitated mentally and physically due to old-age and alzheimers and the said aspect can be reflected in the affidavit filed by PW1/first plaintiff in lieu of chief examination.

(b) In Ext.A1 Will Deed in page No.4, it is specifically recited that testatrix subscribed her signature in Ext.A1 Will Deed in the presence of witnesses inside her residential house ie., 'Puthiyidathu Veedu' within the jurisdiction of Adoor Sub Registry Office. In the said page, it is also recited that the Will Deed is to be registered in Adoor Sub Registry Office. But at the same time, now the version of PW1 to PW3 before court is that testatrix Smt.Velumbi subscribed her signature in Ext.A1 Will Deed when she was present in the office of the document writer named Monachan situated in Adoor.

(c) No thumb impression seen affixed by testatrix in Ext.A1 Will Deed and the signature purported to have been subscribed by the testatrix seen in Ext.A1 is rudimentary in nature. The documents registered by Smt.Velumbi formerly contained her thumb impression and signature.

(d) Even though in Ext.A1 Will Deed, it is recited that the document is to be registered in Adoor Sub Registry Office the same is not seen registered.

(e) Both the attesting witnesses signed in Ext.A1 Will Deed are close relatives of propounders. Witness No.1 Podiyan is the R.S.A.No.444 of 2021

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father of first and third plaintiffs and witness No.2 Dhanaseelan is the husband of second plaintiff Thankamma. The absence of independent witness in Ext.A1 Will Deed is highly doubtful.

(f) The children of Sri.Adichan including Podiyan who is the father of first and third plaintiffs and second plaintiff Thankamma were in inimical terms with Sri.Adichan as Adichan solemnized his second marriage with Smt.Velumbi and criminal cases were registered against Podiyan alleging that Podiyan assaulted Adichan. In such a situation, it is not probable that Smt.Velumbi bequeathed her entire properties in favour of the plaintiffs.

(g) The absence of Adichan as a witness in Ext.A1 Will Deed is also a suspicious circumstance.

(h) From the materials available on record, it can be seen that the propounders /appellants /plaintiffs and their close relatives were actively participated in the execution of Ext.A1 Will.

11. In this connection, it is pertinent

to note that mutation of any portion of the

plaint schedule properties were not effected in

the name of the plaintiffs. From Ext.A2 tax

receipt produced by the plaintiffs, it is R.S.A.No.444 of 2021

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evident that on 30.3.2006, the thandaper of the

entire plaint schedule properties was in the

name of Smt.Velumbi. Hence, even after the

death of Smt.Velumbi, the plaintiffs had not

effected mutation of the plaint schedule

property in their name though they had set up a

claim on the strength of Ext.A1 Will deed.

Although Ext.B1 sale deed in favour of the

defendant is assigned, no prayer for

cancellation of Ext.B1 is seen made. PW1

admitted that Adichan died only on 30.12.2008.

The suit was filed in 2006. Sri.Adichan was not

arraigned as a party in the original suit. The

suit was instituted without the junction of

Adichan in the party array. There was no

cancellation of the sale deed also. Although

Ext.B1 Sale deed was assailed by the plaintiffs

on the ground that Adichan had not executed

Ext.B1 sale deed and his signature etc. are

different, the plaintiffs failed to make him as R.S.A.No.444 of 2021

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a party to elicit the exact truth. In the

circumstances, the only inference, which could

be drawn, is that Adichan has no case that he

had not subscribed his signature and affixed his

thumb impression in Ext.B1. There was no case

for the plaintiff that Ext.B1 was executed on

the ground of fraud, undue influence and

misrepresentation. The plea contemplated under

Order VI Rule 4 of CPC are absolutely lacking in

the plaint. In view of the above circumstances,

both the trial court and the appellate court

rightly held that the defendant obtained title

and possession over the counter claim schedule

property on the strength of Ext.B1 sale deed.

12. The burden of proof, that Ext.A1

Will was executed by the testator, is on the

propounder. The propounder is also required to

prove that the testator had signed the will and

that he had put his signature out of his own

free will having a sound disposition of mind and R.S.A.No.444 of 2021

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understood the nature and effect thereof. If

sufficient evidence in this regard is brought on

record, the onus of the propounder may be held

to have been discharged. But, the onus would be

on the propounder to remove all suspicious

circumstances by leading satisfactory evidence

if there exists any. In the case on hand, it

has come out evidence that testatrix was

suffering from Alzheimers during the fag end of

her life and she died before her husband's

death. No explanation was offered as to why the

Will was not registered. In Ext.A1 Will Deed,

thumb impression of Smt. Velumbi is

conspicuously absent though in all other former

documents executed by her she put her signature

and affix her thumb impression. The disputed

Ext.A1 Will was executed in 2004. Exts.A3 and

A4 settlement deeds were executed in the years

1985 and 1989 respectively. In Ext.A3 and A4,

Adichan and Velumbi are parties. In both R.S.A.No.444 of 2021

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Exts.A3 and A4, the signature and thumb

impression of Velumbi are present. Even as per

the case of the plaintiffs, the document was

executed at the office of a document writer.

The husband of Smt.Velumbi, Adichan was not a

party to Ext.A1 Will. The trial court and the

appellate court meticulously analysed the

evidence in detail and followed the decisions of

the Supreme Court reported in H.Venkatachala

Iyengar v. B.N.Thimmajamma & others [AIR 1959 SC

443], Ramachandra Rambux v. Champabai and others

[AIR 1965 SC 354] and Bharpur Singh and Others

v. Shamsher Singh [(2009) 3 SCC 687].

13. Going by the entire evidence, both

the trial court and the appellate court

concurrently held that plaintiffs failed to

prove Ext.A1 Will and failed to remove all the

suspicious circumstances attached to the will in

accordance with the provisions of Section 63 of

the Indian Succession Act and Section 68 of the R.S.A.No.444 of 2021

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Indian Evidence Act. The finding is based on

cogent and binding evidence on record. The

conclusions of the trial court and the first

appellate court negativing the contentions of

the plaintiffs on the strength of Ext.A1 Will

does not warrant interference in a second

appeal. By virtue of Section 63 of the Indian

Succession Act and Section 68 of the Indian

Evidence Act, the general principles to be

applied to determine the question involved in

the suit is well settled. Well settled

principles would not be a substantial question

of law as contemplated under Section 100 of the

CPC. Going by the evidence adduced in this

case, there is no controversy before this Court

with regard to the interpretation or legal

effect of Ext.A1 or any wrong application of a

principle of law in construing Ext.A1. There is

no debatable issue before this court which is

not covered by settled principle of law. R.S.A.No.444 of 2021

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Resultantly, this R.S.A is dismissed

in limine. There will be no order as to costs.

The pending applications, if any, stand closed.

Sd/-

N.ANIL KUMAR, JUDGE

MBS/