Kerala High Court
Valsala vs Unknown on 24 February, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
WEDNESDAY, THE 24TH DAY OF FEBRUARY 2021/5TH PHALGUNA, 1942
RSA.No.724 OF 2020
AS 153/2016 OF PRINCIPAL SUB COURT, IRINJALAKUDA
DTD.26.8.2020
OS 429/2008 OF MUNSIFF COURT, CHALAKUDY DTD.19.11.2016
APPELLANT/APPELLANT/PLAINTIFF (COUNTER CLAIM DEFENDANT):
VALSALA, AGED 59 YEARS,
W/O.SUBRAHMANIAN, KUNISSERY HOUSE,
V.R.PURAM P.O. 680722, THRISSUR DISTRICT.
BY ADV. SRI.K.G.BALASUBRAMANIAN
RESPONDENTS/RESPONDENTS/DEFENDANTS (COUNTER CLAIM
PLAINTIFFS):
1 LEELABHAI, AGED 76 YEARS,
W/O.THANKAPPAN, KOCHUKUNNIL HOUSE,
NEAR ANNAMANADA CHURCH,
ANNAMANADA VILLAGE/PO-680741,
THRISSUR DISTRICT.
2 DHAKSHAYANI, AGED 70 YEARS,
W/O.KOZHIKKATIL VEETTIL SUBRU,
NEAR KUNNUMPURAM BAKERY,
VAZHAKKALA P.O-682030, KAKKANADU,
ERNAKULAM DISTRICT.
R1 & R2 BY ADV. FRANCO T.J.
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON
22-02-2021, THE COURT ON 24-02-2021 DELIVERED THE
FOLLOWING:
R.S.A.No.724 of 2020
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JUDGMENT
This R.S.A. is directed against the judgment and
decree dated 26.8.2020 in A.S.No.153/2016 on the file of
the Principal Sub Court, Irinjalakuda which arose against
the judgment and decree dated 19.11.2016 in counter
claim in O.S.No.429/2008 on the file of the Munsiff's
Court, Chalakudy.
2. The appellant is the plaintiff in a suit for decree
for permanent prohibitory injunction against trespass
upon the plaint schedule property against the respondents
and the defendants/counter claim plaintiffs in the counter
claim for recovery of possession. The parties are
hereinafter referred to as the plaintiff and defendants
according to their status in the trial court unless otherwise
stated.
3. According to the plaintiff, the father of the
parties, namely, K.V.Ayyappan had obtained patta in
R.S.A.No.724 of 2020
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respect of the plaint schedule properties. He died in the
year 1998. The property devolved on his wife Cheeramma
and children who are parties to the suit. The defendants
took away Cheeramma taking advantage of her old age.
They had threatened and managed to obtain documents
from her although she had no disposing capacity. The
plaintiff, her husband and sons were residing in the
building. The defendants had threatened that the plaintiff
will be forcibly evicted.
4. The defendants filed written statement
contending that they and Ammini (mother of the plaintiff)
were the children of one K.V.Ayyappan. Ammini died
earlier. Cheeramma was staying with the 1 st respondent.
She died on 28.5.2009. Ayyappan had obtained 15¾ cents
of property as patta No.12756. He had executed a Will
and registered it as Deed No.161/1992 of Chalakkudy Sub
Registrar's Office and thereby the respondents alone were
R.S.A.No.724 of 2020
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entitled to his estate. Cheeramma had the only right to
reside in the building. On her death, that right ended. The
plaintiff and family were residing in Velookkara Panchayat.
They filed a counter claim and prayed for a decree for
eviction of the plaintiff from the property on the strength
of title and consequential injunction restraining the
plaintiff from causing any obstruction in enjoying the
property.
5. Heard the learned counsel for the appellant and
the learned counsel for the respondents.
6. As stated earlier, in the light of the counter
claim, the suit was not pressed. Exts.A1 to A13 were
marked on the side of the defendants (counter claim
plaintiffs) and Exts.B1 to B5 were marked on the side of
the plaintiff (counter claim defendant). PWs.1, 2, DWs.1
and 2 were examined from the respective sides. The trial
court held that the appellant is the daughter of Ammini.
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The Will was upheld. The counter claim was decreed.
7. The learned counsel for the appellant contended
that the Will was not proved in accordance with law. In
order to prove Ext.A2 Will, the propounders of the Will
examined PW2, one of the attesting witnesses in Ext.A2.
PW2 is the scribe as well as an attesting witness to
Ext.A2. PW2 stated that he along with document writer
Chandrasekharan saw the testator signing Ext.A2 and
thereafter he and Chandrasekharan signed Ext.A2 as
attesting witnesses. Further he testified that the testator
saw the witnesses signing Ext.A2. Both the trial court and
the first appellate court relied on the evidence of PWs.1
and 2 and held that execution of Ext.A2 is proved by the
counter claimants in terms of Section 68 of the Indian
Evidence Act and Section 63 of the Indian Succession Act.
Ext.A2 is a registered Will. As rightly held by the appellate
court that the whole idea behind execution of a Will is to
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interfere with the normal line of succession. Consequently,
natural heirs would be debarred in every case of Will. In
view of the above circumstances, the trial court and the
first appellate court held that Ext.A2 is a genuine Will and
the Will has come into effect subsequent to the death of
the testator. Accordingly, the counter claim was decreed
directing to surrender vacant possession of the plaint
schedule property within a period of one month and
consequential injunction restraining the plaintiff/counter
claim defendant from causing any hindrance in enjoying
the counter claim schedule property.
8. A second appeal is not a matter of right. The
right of appeal is conferred by statute. A second appeal
only lies on a substantial question of law. If statute
confers a limited right of appeal, the Court cannot expand
the scope of the appeal. It was not open to the plaintiff to
re-agitate facts or to call upon the High Court to re-
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analyse or re-appreciate evidence in a second appeal. In
the case on hand, both the trial court and the first
appellate court relied on the oral evidence of PWs.1 and 2,
Exts.A1 to A13 and held that Ext.A2 Will was executed by
the testator voluntarily without any suspicious
circumstance.
9. On behalf of the plaintiff, it has strenuously
been contended with considerable force that the counter
claim for recovery of possession of the plaint schedule
property from the plaintiff on the strength of Ext.A2 Will is
unsustainable as the plaintiff has been totally excluded
from the natural line of succession under suspicious
circumstances. However, there is no contra evidence
adduced by the plaintiff to prove a probable case that the
testator executed Ext.A2 Will due to the undue influence
exerted by the defendants. To be "substantial", a question
of law must be debatable, not previously settled by the
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law of the land or any binding precedent, and must have a
material bearing on the decision of the case and/or the
rights of the parties before it, if answered either way. As
stated earlier, in a second appeal, the jurisdiction of the
High Court being confined to substantial question of law, a
finding of fact that Ext.A2 Will was executed by the
testator without suspicious circumstances and execution
of Ext.A2 Will was proved in accordance with Section 68 of
the Indian Evidence Act and Section 63 of the Indian
Succession Act is not open to challenge in second appeal,
even if the appreciation of evidence is wrong. There is no
debatable issue before this Court which is not covered by
settled principles of law or precedents.
10. The trial court and the first appellate court
examined the evidence on record at length and arrived at
a reasoned conclusion that the testator had executed
Ext.A2 Will to exclude the plaintiff from natural inheritance
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of the property. The concurrent findings of facts of the
trial court and the first appellate court do not warrant
interference in a second appeal.
For the reasons discussed above, the R.S.A. is
dismissed. There will be no order as to costs. Pending
applications, if any, stand disposed of.
Sd/-
N.ANIL KUMAR,
JUDGE
skj
