Manju.M.Lal vs Vanaja
2021 Latest Caselaw 14814 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
              THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
     THURSDAY, THE 15TH DAY OF JULY 2021 / 24TH ASHADHA, 1943
                       RSA NO. 378 OF 2021
[AGAINST THE JUDGMENT AND DECREE DTD.13-01-2021 IN A.S.NO.10/2018
OF III ADDITIONAL DISTRICT COURT, THODUPUZHA AND THE JUDGMENT AND
   DECREE DTD.20-10-2017 IN O.S.NO.54 OF 2010 OF THE MUNSIFF'S
                        COURT, THODUPUZHA]
APPELLANT/APPELLANT/ADDL.9TH DEFENDANT:

          MANJU.M.LAL,
          NOW AGED 51 YEARS,
          W/O.MANOHARLAL, VAISAGHAM HOUSE, MAMAMKARA,
          ATTINGAL VILLAGE, THIRUVANANTHAPURAM-695 101.
          BY ADVS.
          P.B.SAHASRANAMAN
          SRI.T.S.HARIKUMAR


RESPONDENTS/RESPONDENTS/PLAINTIFF AND DEFENDANTS 1 TO 5,7 AND 8:

    1     VANAJA,
          NOW AGED 75 YEARS,
          W/O.SIVARAJAN, POURNAMI, KARITHOTTAMURI, KULANADA
          VILLAGE, KOZHENCHERRY TALUK, PATHANAMTHITTA-689 503.
    2     SUBHAGA @ SUBHAGA RAVEENDRAN,
          NOW AGED 73 YEARS,
          W/O.RAVEENDRAN, LOY NIVAS, THACHODE, SRINIVASAPURAM
          P.O., VARKALA DISTRICT, THIRUVANANTHAPURAM-695 145.
    3     SUSHAMA @ SUSHAMA THANKAPPAN,
          NOW AGED 71 YEARS
          W/O.THANKAPPAN, DWARAKA, CHERAVALLY, KAYAMKULAM,
          ALAPPUZHA-690 502.
    4     SUSHEELA @ SUSHEELA RAJAN,
          NOW AGED 70 YEARS
          W/O.RAJAN, THOPPIL HOUSE (ANAKUNNEL), CHERAVALLY,
          KAYAMKULAM, ALAPPUZHA-690 502.
    5     LALY @ LALY MOHANAN,
          NOW AGED 67 YEARS,
          W/O.MOHANAN, SREEVILASAMANDIRAM, KARAMKODE,
 R.S.A.No.378 of 2021

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             CHATHANNOOR, KOLLAM-691 579.
     6       YAMUNA @ YAMUNA RANI ROY,
             NOW AGED 65 YEARS,
             W/O.ROY, ROY VILLA, (THYPPARAMBIL) VADAKKAL,
             OPP.VILLAGE OFFICE, PARAVOOR, ALAPPUZHA-688 014.
     7       SREEDEVI SUBHASH,
             NOW AGED 61 YEARS,
             W/O.SUBHASH, 6-GARDEN ROAD, SOUTH HALL, MINDOX,
             LONDON, ENGLAND, U-B-2, 5QE, REPRESENTED BY POWER
             OF ATTORNEY LALY @ LALY MOHANAN, NOW AGED 67
             YEARS, W/O.MOHANAN, SREEVILASAMANDIRAM, KARAMKODE,
             CHATHANNOOR, KOLLAM-691 579.
     8       M.B.MANOJLAL,
             NOW AGED 55 YEARS,
             S/O.BALAKRISHNAN, MULANTHALA, CHIRAKKADAVAM,
             KAYAMKULAM, ALAPPUZHA-690 502.
             BY ADV SRI.K.SHAJ


      THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION

ON   13.07.2021,       THE   COURT    ON     15.07.2021   DELIVERED   THE

FOLLOWING:
 R.S.A.No.378 of 2021

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                              JUDGMENT

This regular second appeal is directed against the

judgment and decree dtd.13.1.2021 in A.S.No. 10/2018 of

the Third Additional District Court, Thodupuzha (hereinafter

referred to as 'the trial court') arising from the judgment and

decree in O.S.No. 54/2010 dtd.20.10.2017 of the Munsiff's

Court, Thodupuzha (hereinafter referred to as 'the trial

court').

2. The appellant is the additional 9th defendant in

O.S. No.54/2010 of the Munsiff's Court, Thodupuzha. The

suit was filed by the first respondent/plaintiff against

defendants No. 1 to 8, who are her siblings for partition of the

plaint schedule items No.1 and 2 properties. The additional

9th defendant filed written statement contending that the suit

is not maintainable. The parties are hereinafter referred to as

'the plaintiff' and 'the defendant' according to their status in

the trial court, unless otherwise stated.

3. The plaint schedule property originally belonged

to one Balakrishnan, the father of the plaintiff and

defendants. He had executed a sale deed No.109 R.S.A.No.378 of 2021

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dtd.1.4.1953 in favour of his wife Janakiamma @ Janamma

and his children, the plaintiff and defendants 1 to 3

respectively. The other defendants were born thereafter.

Janamma passed away on 2.7.2001. The plaintiff is the title

holder of 1/5th share of the plaint schedule property and she

is further entitled to get 1/9th share in the 1/5th share of her

mother Janamma. The defendants 1 to 3 are also entitled to

get share equal to that of the plaintiff whereas the other

defendants are entitled to get 1/9th share of the 1/5th share

of Janamma.

4. Defendants 1,3,4,5 and 7 jointly filed written

statement contending that item No.1 property alone is

partible whereas item No.2 property is not partible. Janamma

had executed a will deed no. 42/1989 bequeathing item No.2

property to defendants No.6 and 8.

5. The suit was originally filed as O.S.No. 89/2003

before the Munsiff's Court, Devikulam where the defendants

1,3,4,5 and 7 only entered appearance. Defendants No.2,6

and 8 remained ex parte. The plaintiff had relinquished her

claim over item No.2 property and accordingly, a preliminary R.S.A.No.378 of 2021

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decree was passed in respect of item No.1 property.

Defendant No.6 died pending proceedings on 6.10.2004 and

additional 9th defendant was impleaded as his legal heir.

Additional 9th defendant preferred an appeal challenging the

preliminary decree and judgment of the trial court before the

first appellate court. After having heard both sides, the

first appellate court remanded the case for fresh disposal. It

was an open remand. After the remand, the suit was

transferred to Munsiff's Court, Thodupuzha and renumbered

as O.S. No.54/2010.

6. In the written statement filed, the additional 9 th

defendant contended that the suit is not maintainable.

According to her, the defendant No.6 got half right over the

plaint schedule item No.2 property by operation of will deed

No.42/1989 executed by Janamma. Further Janamma

executed a codicil dtd.28.2.1999 bequeathing 1/5th share of

Janamma to defendant No.6 and after the death of Janamma,

defendant No.6 mutated his shares in the respective revenue

records of both schedule items in his name and had been

paying land tax till his death and after by the additional R.S.A.No.378 of 2021

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defendant No.9 as his sole legal heir. Item No.1 scheduled

property is to be partitioned among the plaintiff, defendants

No. 1 to 3 and 6 and as the legal heirs of the defendant No.6,

she is entitled to get 1/5th share of plaint schedule item No.1

property. The defendant No.2 also filed written statement

adopting the very same contention of defendant No.9.

7. The trial court framed necessary issues in this

case. During the trial of the case PWs.1 and 2 were

examined and marked Exts.A1 to A3 on the plaintiff's side.

DWs.1 to 6 were examined and marked Exts.B1 to B11 on

defendants' side.

8. After having heard both sides, the trial court

found that the Will Deed No.42/1989 is a genuine deed,

executed by the testator and resultantly, the plaint schedule

item 2 is not partible. The trial court also found that the

defendant No.9 had not succeeded in proving the codicil

dated 28.2.1999 in accordance with law. Hence, a

preliminary decree was passed as prayed for in the suit.

Feeling aggrieved, the defendant No.9 preferred first appeal

before the first appellate court. The first appeal was R.S.A.No.378 of 2021

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dismissed confirming the preliminary judgment and decree of

the trial court. Hence, this regular second appeal.

9. Heard Sri.T.S.Harikumar, the learned counsel for

the appellant and Sri.K.Shaj, the learned counsel for the

Caveator/the first respondent.

10. The learned counsel for the appellant

contended that the trial court discarded the evidence adduced

by the attesting witnesses in Ext.B1 codicil dtd.28.2.1999 and

rather relied on the forensic report. According to the learned

counsel for the appellant, the trial court compared Ext.B1

disputed document executed on 28.2.1999 with Ext.B2 will

deed No.42/1989, which was executed ten years back. It was

contended that the expert did not compare Ext.B1 with

contemporaneous documents and the trial court erroneously

relied on the expert opinion to decide the genuineness of

Ext.B1.

11. On the other hand, the learned counsel for the

respondents submitted that a codicil is similar to a will and

the modes as to execution and attestation of a will apply to

the codicil as well. The learned counsel for the respondents R.S.A.No.378 of 2021

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further contended that proof of the signature of the testator

in a will is a vital matter, which requires to be proved in

accordance with Section 63 of the Indian Succession Act,1925

(hereinafter referred to as 'the Succession Act') and Section

68 of the Indian Evidence Act, 1872 (hereinafter referred to

as 'the Evidence Act'). The learned counsel further submitted

that the evidence to prove a will insisted by law is that of the

attestors. It was further argued that if there is anything

suspicious to the signature, execution can certainly be

corroborated or contradicted by an expert opinion. In the

case at hand, the learned counsel for the respondent

submitted that the court weighed all other evidence in the

proper perspective and applied its mind independently and

compared the signature of the testatrix with her admitted

signature in accordance with Section 73 of the Evidence Act.

The learned counsel further submitted that both the trial

court and the appellate court analysed the evidence in detail

and entered a finding that Ext.B1 codicil was not executed by

the testatrix. Thus, it was argued that interference with

concurrent findings of fact is not permissible when material or R.S.A.No.378 of 2021

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relevant evidence were considered by the two courts below

and findings thereon arrived at by relying on admissible

evidence.

12. Section 2(b) of the Succession Act defines

'codicil' as an instrument made in relation to a Will, and

explaining, altering or adding to its dispositions and shall be

deemed to form part of the Will. A codicil is deemed to be

part of the will. Under Section 62 of the Succession Act, a

will can be altered by the maker of it at any time when the

testator is competent to dispose of his property. A person

may be competent by reason of being a sound and disposing

state of mind. The law is also well settled that even an

unregistered codicil in relation to a registered will would have

to be read as complementing the will. In the case on hand,

Ext.B2 will was executed by the testatrix, who was working in

the Registration Department before the Sub Registrar.

However, Ext.B1 codicil is an unregistered will. Hence, it is

necessarily on the part of the propounder to prove that the

codicil was executed following same rules of execution as

applicable to Ext.B2 will to which it relates to. Needless to R.S.A.No.378 of 2021

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say that the evidence adduced in proof of Ext.B1 codicil must

also satisfy the same requirements as applicable to the proof

of execution of will. In other words, Ext.B1 codicil has to be

proved in accordance with Section 63(c) of the Succession Act

read with Section 68 of the Evidence Act.

13. In order to prove Ext.B1 codicil, the defendant

No.9 examined attestors and scribe of Ext.B1 as DWs. 2 to 4.

Section 63 of the Succession Act requires a will to be

attested. It cannot be used as an evidence as required by

Section 68 of the Evidence Act until one attesting witness at

least has been called for the purpose of proving its execution

if there be an attesting witness alive and subject to the

process of the Court and capable of giving evidence. On a

reading of Ext.B1 codicil, it is clear that the document was not

registered in accordance with the Registration Act and the

rules framed thereunder. The propounder is bound to prove

that the testator has signed the will and that he has put his

signature out of his own free will having a sound disposing

state of mind and understood the nature and effect thereafter.

There is nothing on record that the codicil was dictated by the R.S.A.No.378 of 2021

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testatrix in the presence of DWs.3 and 4. There is also

nothing on record to show that the scribe, who wrote the

codicil, read over the contents of Ext.B1 codicil to the testator

and the testator acknowledge the contents thereof.

14. As per the provisions of Section 63 of the

Succession Act, for the due execution of a will, i) the testator

should sign or affix his mark to the Will; ii) the signature or

mark of the testator, or the mark of the testator should be so

placed that it should appear that it was intended thereby to

give effect to the writing as a Will; iii) the will should be

attested by two or more witnesses and iv) each of the said

witnesses must have seen the testator signing or affixing his

mark to the Will and each of them should sign the Will in the

presence of the testator. Regarding the execution of Ext.B1

codicil, the trial court stated in paragraph 12 of the judgment

as follows:-

"12. To prove Ext.B1 codicil, D9 examined attestors and scribe of Ext.B1 as DW 2 to 4. DW2 deposed that he saw Janamma signing Ext.B1. He further deposed that he signed Ext.B1. He did not depose that he signed the instrument in the presence of Janamma. DW3 also deposed that he saw Janamma signing Ext.B1. He further deposed that he signed Ext.B1 as a witness. He did not R.S.A.No.378 of 2021

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depose that Janamma saw him signing Ext.B1. There is nothing in the deposition of DW2 and 3 that each of them signed Ext.B1 in the presence of the executant. One of the cardinal requirements of attestation of the instrument is that each of the attestors has signed the instrument in the presence of the executant. DW4 the scribe identified Ext.B1 as the document written by him and signed by Janamma. DW4 categorically deposed that Janamma demanded him to prepare will deed in May 1999. He further deposed that Janamma signed after the attestors signed Ext.B1. During re-examination, the counsel for the ninth defendant put a leading question to DW4 if Janamma signed after the attestors at the place where her name is written after the witnesses in the last page of Ext.B1. To this leading question, DW4 answered in the affirmative. Likewise another leading question was asked to DW4 if it is after or before Ext.B1 dated 28-2-1999 that Janamma wanted to prepare the will deed. To this question, DW4 answered that it was before 28-2-1999. The learned counsel for D9 contended that minor discrepancies in the depositions of the witnesses cannot affect the credibility of the will. But the aforementioned discrepancies are not minor, but material discrepancies."

15. On a perusal of the oral evidence let in by

DW3, it is clear that he did not depose that he saw Janamma

signing Ext.B1 codicil. When it comes to execution of an

unregistered codicil, it is necessary on the part of the

propounder to prove the execution thereof strictly in

accordance with Section 63 of the Succession Act. R.S.A.No.378 of 2021

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16. Ext.B2 was admittedly executed by the

testatrix. On a comparison of the signature of Ext.B1 codicil

and Ext.B2 will deed, PW2 the Assistant Director (Documents)

of the Forensic Science Laboratory, Thiruvananthapuram filed

a report confirming that the person, who wrote the standard

signatures in Ext.B2 will deed, did not write the questioned

signatures in Ext.B1 codicil. The trial court as well as the first

appellate court analysed the report of the Forensic Expert

critically and formed an opinion that the report of Expert is

admissible in evidence. The trial court analysed the entire

evidence in detail and compared the signatures in Ext.B1

codicil and Ext.B2 will and entered a finding that the

signatures in Ext.B1 codicil are different from the admitted

signatures in Ext.B2 in exercise of the powers under Section

73 of the Evidence Act. Accordingly, the trial court and the

appellate court concurrently entered a finding that the

testatrix Jannama did not subscribe her signatures in Ext.B1

codicil.

17. Defendant No.9 produced Ext.B1 codicil before

the court only on 27.7.2010 though it was executed on R.S.A.No.378 of 2021

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28.2.1999. Exts.B6 and B7 tax receipts would show that the

property was mutated in favour of defendant No.6 only after

11.8.2004. Defendant No.6 died on 6.10.2004. The land tax

was paid in the name of defendant No.6 on 14.10.2004 as per

Ext.B7, after the death of defendant No.6. No plausible

explanation was offered for the delay of three years for

effecting mutation and payment of land tax of the property

after the death of Janamma, particularly when the 9 th

defendant when examined as DW5 testified that she came

to know about the will five days after the death of Janamma.

Janamma died on 28.7.2001. However, the property was

mutated in the name of defendant No.6 only two months

before the death of defendant No.6 and tax was paid by

defendant No.6 eight days after the death of defendant No.6.

18. The trial court and the first appellate court

discarded the evidence of DWs. 2 and 3. DWs.2 and 3 would

say that they were asked by Janamma to attest a will deed

about a month prior to the date of execution of Ext.B1. They

stated that they came together to the residence of Janamma

on 28.2.1999 at about 11 a.m. to find DW3 writing the will. R.S.A.No.378 of 2021

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It is an admitted fact that defendants No.6, 8 and 9 had been

residing with Janamma at that point of time. Strange as it

may sound, on the alleged date of execution of Ext.B1,

Janamma was alone at her residence. Considering the above

circumstances, the trial court and the appellate court

concurrently held that it is very difficult to believe the story

advanced by the plaintiff.

19. In a second appeal, the jurisdiction of the High

Court being confined to substantial question of law, a finding

of fact is not open to challenge in a second appeal, even if the

appreciation of evidence is palpably erroneous and the finding

of fact is incorrect. The trial court and appellate court

concurrently held that the Ext.B1 codicil was not executed by

the testatrix. The trial court and the appellate court

examined the evidence on record at length and arrived at a

reasoned conclusion that Ext.B1 codicil was not executed by

the testatrix. This finding is based on cogent and binding

evidence including the opinion of the expert and comparison

made by the court under Section 73 of the Evidence Act.

There was no erroneous inference from any proved fact, nor R.S.A.No.378 of 2021

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had the burden of proof erroneously been shifted. The

question mooted by the appellant before this court is not at

all a question of law, far less any substantial question of law

involved in the case.

For the reasons stated above, the appeal stands

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

pending applications, if any, stand closed.

Sd/-

N.ANIL KUMAR, JUDGE MBS/