Puthenveetil Mavila Radha vs Koderi Narayanan Nambiar
2021 Latest Caselaw 8639 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM

                           PRESENT

            THE HONOURABLE MR.JUSTICE N.ANIL KUMAR

  TUESDAY, THE 16TH DAY OF MARCH 2021 / 25TH PHALGUNA, 1942

                      RSA.No.246 OF 2020

          AS 103/2012 OF ADDL. SUBCOURT, THALASSERY

          OS 194/2008 OF MUNSIFF COURT, KUTHUPARAMBA


APPELLANTS/APPELLANTS/DEFENDANTS:

      1     PUTHENVEETIL MAVILA RADHA, AGED 60 YEARS
            W/O. LATE KODERI GOVINDAN NAMBIAR, NO OCCUPATION,
            VADAKKEKARA HOUSE, KEEZHOOR AMSOM, 37 PUNNAD
            DESOM, P. O. PUNNAD, THALASSERY TALUK, KANNUR
            DISTRICT - 670 703.

      2     DAUGHTER, PUTHEN VEETTIL MAVILA RESHMA, AGED 34
            YEARS, D/O. LATE KODERI GOVINDAN NAMBIAR, NO
            OCCUPATION, VADAKKEKARA HOUSE, KEEZHOOR AMSOM, 37
            PUNNAD DESOM, P. O. PUNNAD, THALASSERY TALUK,
            KANNUR DISTRICT - 670 703.

      3     SISTER, PUTHEN VEETTIL MAVILA REMYA, AGED 31
            YEARS, D/O. LATE KODERI GOVINDAN NAMBIAR, NO
            OCCUPATION, VADAKKEKARA HOUSE, KEEZHOOR AMSOM, 37
            PUNNAD DESOM, P. O. PUNNAD, THALASSERY TALUK,
            KANNUR DISTRICT - 670 703.

            BY ADVS.
            SRI.P.G.SURESH
            SMT.ASWATHY KRISHNAN

RESPONDENT/RESPONDENT/PLAINTIFF:

            KODERI NARAYANAN NAMBIAR, AGED 58 YEARS
            S/O. NARAYANI AMMA, AGRICULTURE, KEEZHOOR AMSOM,
            37 PUNNAD DESOM, P. O. PUNNAD, THALASSERY TALUK,
            KANNUR DISTRICT - 670 703.


     THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON
04-03-2021, THE COURT ON 16-03-2021 DELIVERED THE FOLLOWING:
 R.S.A.No.246 of 2020


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                        JUDGMENT

This appeal is directed against the judgment and

decree in A.S.No.103/2012 dated 24.10.2019 on the file

of the Sub Court, Thalassery (hereinafter referred to as

'the first appellate court') challenging the judgment and

decree in O.S.No.194/2008 dated 31.8.2011 on the file of

the Munsiff's Court, Kuthuparamba (hereinafter referred

to as 'the trial court'). The appellants are the defendants 1

to 3 in the O.S. filed by the respondent/plaintiff. The

parties are hereinafter referred to as the plaintiff and

defendants according to their status in the trial court

unless otherwise stated.

2. The suit is for partition of plaint schedule

property item Nos.1, 2 and 3. The plaint schedule

property originally belonged to Govindan Nambiar who is

the brother of the plaintiff. The property described as item

No.1 in the plaint schedule was acquired by him as per R.S.A.No.246 of 2020

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partition deed No.428/1987. The property described as

item No.2 was purchased by him by virtue of the

registered assignment deed bearing Nos.3939/1996 of

Uliyil Sub Registrar's Office. The property described as

item No.3 was acquired by Govindan Nambiar by virtue of

the registered assignment deed No.3123/1998 of the

SRO, Peravoor. While Govindan Nambiar was in possession

and enjoyment of the property he passed away. He was

survived by his mother, Narayani Amma, wife and two

female children. The 1st defendant is his wife and the

defendants 2 and 3 are the daughters of Govindan

Nambiar born in the wedlock with the 1st defendant. On

the death of Govindan Nambiar, his right over the plaint

schedule property devolved upon his mother Narayani

Amma and defendants. Hence they were in joint

possession and enjoyment of the plaint schedule

properties. While so, Narayani Amma executed a R.S.A.No.246 of 2020

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registered release deed bearing No.2341/2007 of Uliyil

Sub Registrar's Office in respect of ¼ share over the

property described as item Nos.1 and 2 in the plaint

schedule in favour of the plaintiff. Thereafter, she gifted

her 1/4th share in the properties described as item No.3 in

the plaint schedule to the plaintiff by virtue of registered

settlement deed bearing No.4534/2007 of Peravoor Sub

Registrar's Office. As such, the plaintiff and defendants

have got ¼ share in the plaint schedule property.

3. In the written statement filed, the defendants 1

to 3 contended that the plaint schedule property is

originally belonged to the brother of the plaintiff who is

the husband of the 1st defendant and father of defendants

2 and 3, deceased Govindan Nambiar. Apart from the

plaintiff Govindan Nambiar was having 3 siblings. The

mother of the plaintiff and Govindan Nambiar have been

residing along with the plaintiff. The properties described R.S.A.No.246 of 2020

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in the plaint schedule are self-acquired properties of

Govindan Nambiar. He was a chronic patient. He was

suffering from cardiac problems and was suffering from

diabetes also. On 07.07.2004, he died. Before his death

he had executed a unregistered Will on 05.1.2001

bequeathing all his rights over the plaint schedule

property in favour of the 1st defendant. The 1st defendant

had availed a loan mortgaging the plaint schedule

properties after the death of Govindan Nambiar, the

husband of the 1st defendant. So, the plaintiff could not

claim any right over the plaint schedule property. The

plaintiff has clandestinely prevailed over Narayani Amma

and somehow got executed the document referred to in

the plaint.

4. Heard the learned counsel for the appellants.

5. By the judgment dated 31.8.2011 in

O.S.No.194/2008, the trial court passed a preliminary R.S.A.No.246 of 2020

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decree as hereinbelow:-

"In the result, suit is decreed and a preliminary decree is passed in the following terms:

1) The plaint schedule property shall be divided into 4 equal shares and 1 such share shall be allotted to the plaintiff.

2) One each such share shall be allotted to defendants 1 to 3 each on payment of requisite court fee.

3) Equity and reservation can be considered at the final decree stage. But the commissioner shall effect partition without disturbing the present possession as far as possible.

4) Plaintiff is entitled to get future share of profits, quantum of which will be decided at the final decree stage.

5) Parties are at liberty to file application for passing final decree and in R.S.A.No.246 of 2020

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such event an Advocate Commissioner will be appointed for metes and bounds partition.

6) Cost of the suit shall come out of the estate.

              7)       Suit adjourned sine-die."


      6.    The        plaint   schedule      properties    originally

belonged to late Govindan Nambiar. Subsequent to his

death, the property devolved jointly upon the defendants

and his mother Narayani Amma. Hence, the plaintiff would

contend that he had obtained 1/4 th joint right over plaint

schedule item Nos.1 and 2 by Ext.A1 document and 1/4 th

right over plaint schedule item No.3 property by Ext.A2

document whereby Narayani Amma assigned her 1/4 th

undivided share in the plaint schedule properties in favour

of the plaintiff. On the other hand, the defendant would

contend that late Govindan Nambiar executed Ext.B1 Will R.S.A.No.246 of 2020

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bequeathing the plaint schedule properties exclusively to

the 1st defendant. They also assailed the legal validity of

Exts.A1 and A2 documents on the grounds of coercion,

fraud and undue influence. Ext.B1 is an unregistered Will.

The trial court and the first appellate court held that

Ext.B1 was not executed by Govindan Nambiar on the

following grounds:-

i) Govindan Nambiar had got a copy of Ext.B1 Will attested by a Notary. If so, he could very well have got Ext.B1 Will registered with the Sub Registrar's Office, Uliyil.

ii) No reasonable explanation was offered as to why Ext.B1 Will was not registered before the competent Authority.

iii) The Will was allegedly executed by Govindan Nambiar on 05.01.2001 and Govindan Nambiar expired on 07.07.2004. Hence, he had enough time and opportunity to get Ext.B1 registered.

R.S.A.No.246 of 2020

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iv) DW2 one of the witnesses examined on the side of the defendants deposed that late Govindan Nambiar was a person who used to do hard work and he expired all of a sudden after he returned to his home from the agricultural land.

v) The daughters of late Govindan Nambiar and 1st defendant were minors and unmarried at the time of alleged execution of Ext.B1 Will. No reasons are offered as to why Govindan Nambiar executed a Will disinheriting his minor daughters.

vi) The Will was not produced along with the written statement.

vii) The alleged notarized copy of the Will was not produced before court.

viii) Ext.B1 Will is dated 05.01.2001. Despite the execution of Ext.B1 Will the property R.S.A.No.246 of 2020

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stood in the names of the plaintiff and the defendants in the revenue records as per Exts.A4 to A8.

ix) No attempt was made to mutate the property in the name of beneficiary of Ext.B1 Will subsequent to the death of Govindan Nambiar.

x) Evidence of DWs.2 and 3 who are the attestors of Ext.B1 Will is suspicious.

xi) The signature in Ext.B2 partition deed admittedly signed by late Govindan Nambiar is different from the signatures of late Govindan Nambiar in Ext.B1 Will.

7. Analysing the entire evidence in detail, both the

trial court and the first appellate court entered a finding

that the defendants have not succeeded in dispelling the

above suspicious circumstances regarding the execution of

Ext.B1 Will. Added to this, the first appellate court had R.S.A.No.246 of 2020

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entered a finding that as per Order VI Rule 4 of the C.P.C.,

where mis-representation, fraud, undue influence, etc. are

pleaded by any party, full particulars of the alleged fraud,

coercion and undue influence must be put forth in the

pleadings of such party with full particulars. In the case on

hand, details are not stated. In view of the above

circumstances, the trial court and the first appellate court

concurrently held that Exts.A1 and A2 are valid. Hence,

pursuant to the execution of Exts.A1 and A2, the plaintiff

had obtained ¼th undivided right over the suit properties.

Hence, the plaint schedule property is partible among the

plaintiff and defendants and each of them have 1/4 th right

each over the said properties. Accordingly, the appeal was

dismissed.

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 R.S.A.No.246 of 2020

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confers a limited right of appeal, the Court cannot expand

the scope of the appeal. It was not open to the defendants

to re-agitate facts or to call upon the High Court to re-

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 PW1,

Exts.A1 to A11, DWs.1 to 3 and Exts.B1 to B8 to grant a

preliminary decree for partition.

9. On behalf of the appellants, it has strenuously

been contended with considerable force that the plaintiff

has not obtained any right over the property by virtue of

Exts.A1 and A2 documents and late Govindan Nambiar

executed Ext.B1 Will bequeathing his properties in favour

of the defendants. However, there is no contra evidence

adduced by the defendants to prove a probable case that

Ext.B1 Will had come into effect subsequent to the date of

death of the testator. To be "substantial", a question of law R.S.A.No.246 of 2020

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must be debatable, not previously settled by the 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.B1 Will was not executed by late

Govindan Nambiar and it had not come into effect 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 plaint schedule property is

partible. The concurrent findings of facts of the trial court

and the first appellate court do not warrant interference in R.S.A.No.246 of 2020

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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