Kerala High Court
C.M.Renuka Devi vs C.M.Meera on 2 November, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
TUESDAY, THE 2ND DAY OF NOVEMBER 2021 / 11TH KARTHIKA, 1943
AS NO. 874 OF 1997
AGAINST THE JUDGMENT AND DECREE DATED 27/02/1997 IN OS 269/1992 OF
I ADDITIONAL SUB COURT, KOZHIKODE
APPELLANT/(4TH DEFENDANT)
MRS.K.PRASANNA GOPINATHAN,
D/O.C.M.CHANDUKUTTY, 19/1569,
KOUSALYA MANDIRAM, P.O.KALLAI, KOZHIKODE-3
BY ADV SRI.P.R.VENKETESH
RESPONDENTS(PLAINTIFF AND DEFENDANTS 1 TO 3 AND 5 TO 15:
1 C.M.RENUKADEVI, D/O.CHANDUKUTTY, OTHAYOTH HOUSE,
P.O.PUZHUTHANA, WYNAD DISTRICT (DIED)(LR'S IMPLEADED)
2 SMT.C.M.MEERA,D/O.C.M.CHANDUKUTTY,
"SREE VILAS," P.O.VALAPPAD BEACH, TRICHUR DISTRICT
3 C.M.BABU JAYAPRAKASH, S/O.C.M.CHANDUKUTTY, MANJAPPRA
ESTATE, P.O.AMBALAVAYAL, WYNAD DISTRICT
4 C.M.PRASADKUMAR, S/O.CHANDUKUTTY, KUNNATH HOUSE,
ELATHUR AMSOM AND DESOM,
KOZHIKODE TALUK
5 C.M.LAL LATHA,D/O.C.M.CHANDUKUTTY, "DWARAKA", THAIKAD,
THIRUVANANTHAPURAM
6 C.M.PREMNATH, S/O. C.M.CHANDUKUTTY, HOTEL CLASSIC,
OPPOSITE AYURVEDA COLLEGE, M.G.ROAD,
THIRUVANANTHAPURAM
7 C.M.PRADEEPKUMAR,S/O. C.M.CHANDUKUTTY, 'CHAITHANYA',
PARAMBATH P.O., THALAPULATHUR AMSOM AND DESOM,
KOZHIKODE TALUK
8 C.M.PRAMOD, S/O. C.M.CHANDUKUTTY, PARAMBATH P.O.,
THALAKULATHUR, CALICUT
9 C.M.MEENA, D/O.C.M.CHANDUKUTTY AND
W/O.C.K.PRAKASAN,"ANUGRAHA", BYPASS ROAD,
[AS Nos.874/1997, 560/1997] 2
NEAR NUT STREET,P.O.VADAKARA
10 C.M.SUJATHA,D/O.C.M.CHANDUKUTTY,"SREE VIHAR", ELATHUR
AMSOM AND DESOM, KOZHIKODE TALUK
11 CHERUKUDI MATTUVAYAL SHARANYA
(MINOR AGED 11 YEARS)
12 CHARUKUDI MATTUVAYAL SUBHA(MINOR AGED 10 YEARS)
13 C.M.PRASANNA,W/O. 3RD RESPONDENT, MANJAPRA ESTATE P.O.,
AMBALAVAYAL, WAYANAD
14 POOCHAT CHINNAMMA, D/O. POULOSE, THOMATCHAL AMSOM AND
DESOM AT "MANHAPRA,
SULTAN'S BATTERY TALUK, WAYANAD
15 UMESH, (MINOR)
I) MINOR RESPONDENTS 11 AND 12 ARE REPRESENTED BY THEIR
FATHER THE 3RD RESPONDENT.
II) MINOR 15TH RESPONDENT IS REPRESENTED BY HIS MOTHER
AND GUARDIAN CHERUTHODI MUTHURVAYAL RANI, ELATHUR AMSOM
AND DESOM, KOZHIKODE TALUK
ADDL.R16 ABDULLA P.P,
S/O ALIKUNHU HAJI, PUTHEN PURAYIL HOUSE,
ELATHUR, KOZHIKODE 673303
ADDITIONAL 16TH RESPONDENT IS IMPLEADED VIDE ORDER
DATED 20/01/2021 IN IA.NO.2/2020
ADDL.R17 MANOJ OTHAYOTH, 56 YEARS,
S/O LATE JANARDHANAN OTHAYOTH HOUSE,
PUZHUTHANA P.O, WAYANAD 673575 (DIED)
THE LEGAL HEIR OF DECEASED FIRST RESPONDENT IS
IMPLEADED AS ADDITIONAL 17TH RESPONDENT VIDE ORDER
DATED 20/01/2021 IN IA NO.4/2020
ADDL.R18 SHEREENA, W/O.LATE MANOJ OTHAYOTH,
56 YEARS, S/O.LATE JANARDHANAN,
OTHAYOTH HOUSE PUZHUTHANA P.O., WAYANAD 673575
ADDL.R19 VISHNU, S/O.LATE MANOJ OTHAYOTH, 56 YEARS,
S/O.LATE JANARDHANAN,
OTHAYOTH HOUSE PUZHUTHANA P.O.,
[AS Nos.874/1997, 560/1997] 3
WAYANAD 673575
ADDL.R20 AMRITHA,D/O.LATE MANOJ OTHAYOTH, 56 YEARS, S/O.LATE
JANARDHANAN, OTHAYOTH HOUSE, PUZHUTHANA P.O.,
WAYANAD 673575
ADDL.R21 AKSHAY, S/O.LATE MANOJ OTHAYOTH, 56 YEARS, S/O.LATE
JANARDHANAN, OTHAYOTH HOUSE, PUZHUTHANA P.O.,
WAYANAD 673575
LEGAL HEIRS OF DECEASED 17TH RESPONDENT ARE IMPLEADED
AS ADDITIONAL RESPONDENTS 18 TO 21 AS PER ORDER DATED
02.11.2021 IN IA 3/2021
BY ADVS.
SRI.A.SUDHI VASUDEVAN SR.-R3,R11,R12 & R13
SRI.JOSE JONES JOSEPH
SRI.K.M.FIROZ-R16
K.MOHANAKANNAN-R16 TO R19
SMT.M.SHAJNA-R16
SRI.JOSE JONES JOSEPH-R11, R12
SRI.C.P.MOHAMMED NIAS
SRI.PIRAPPANCODE V.S.SUDHIR
M.A.ZOHRA-R16 TO R19
THIS APPEAL SUITS HAVING COME UP FOR ORDERS ON 02.11.2021,
ALONG WITH AS.560/1997, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
[AS Nos.874/1997, 560/1997] 4
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
TUESDAY, THE 2ND DAY OF NOVEMBER 2021 / 11TH KARTHIKA, 1943
AS NO. 560 OF 1997
AGAINST THE JUDGMENT AND DECREE DATED 27/02/1997 IN OS 269/1992 OF
I ADDITIONAL SUB COURT, KOZHIKODE
APPELLANT/PLAINTIFF:
1 C.M.RENUKADEVI,
D/O. CHANDUKUTTY, OTHAYOTH HOUSE,
P.O. POZHUTHANA, WAYANAD DISTRICT.(DIED)
SUPPL.A2 MANOJ.O., AGED 55 YEARS,
S/O.LATE RENUKADEVI, OTHAYOTH HOUSE, POZHUTHANA P.O.,
WAYANAD DISTRICT.(DIED)
SUPPL.APPELLANT NO.2 IS IMPLEADED AS THE LEGAL HEIRS OF
DECEASED SOLE APPELLANT VIDE ORDER DATED 20.01.2021 IN
I.A.NO.1/2018
ADDL.A3 SHEREENA, W/O LATE MANOJ OTHAYOTH, 56 YEARS, S/O LATE
JANARDHANAN OTHAYOTH HOUSE, PUZHUTHANA PO,
WAYANAD - 673575
ADDL.A4 VISHNU, S/O LATE MANOJ OTHAYOTH, 56 YEARS, S/O LATE
JANARDHANAN OTHAYOTH HOUSE, PUTHUTHANA PO,
WAYANAD - 673 575
ADDL.A5 AMRITHA, D/O LATE MANOJ OTHAYOTH, 56 YEARS, S/O LATE
JANARDHANAN OTHAYOTH HOUSE, PUZHUTHANA PO,
WAYANAD - 673 575
ADDL.A6 AKSHAY, S/O LATE MANOJ OTHAYOTH, 56 YEARS, S/O LATE
JANARDHANAN OTHAYOTH HOUSE, PUZHUTHANA PO, WAYANAD -
673 575
LEGAL HEIRS OF DECEASED SUPPL.2ND APPELLANT ARE
IMPLEADED AS ADDITIONAL APPELLANTS 3 TO 6 AS PER ORDER
DATED 02/11/2021 IN IA 1/2021
BY ADVS.
SRI.P.N.KRISHNANKUTTY ACHAN(SR.)
K.MOHANAKANNAN
[AS Nos.874/1997, 560/1997] 5
M.A.ZOHRA
RESPONDENT/DEFENDANTS
1 C.M.MEERA, D/. C.M. CHANDUKUTTY,
"SREEVILAS", P.O. VALAPPAD BEACH, TRICHUR DISTRICT.
2 C.M. BABU JAYAPRAKASH,
S/O. C.M. CHANDU KUTTY MANJAPRA ESTATE,
P.O., AMBALAVAYAL, WAYANAD DISTRICT, KUNNATH HOUSE,
ELATHUR P.O., KORAPUZHA, CALICUT.
3 C.M. PRASADKUMAR, S/O. CHANDUKUTTY KUNNATH HOUSE,
ELATHUR AMSOM AND DESOM, KOZHIKODE TALUK.
4 MRS. K. PRASANNA GOPINATHAN,
D/O. CHANDUKUTTY C.M., 19/1569,
KOUSALYA MANDIRAM, P.O.,
KALLAI, KOZHIKODE.
5 C.M LAL LATHA,D/O. C.M. CHANDUKUTTY "DWARAKA", THAIKAD,
THIRUVANANTHAPURAM.
6 C.M.P. PREMNATH
S/O. C.M. CHANDUKUTTY, HOTEL CLASSIC OPPOSITE AYURVEDA
COLLEGE M.G. ROAD, THIRUVANANTHAPURAM. (DIED)
7 C.M. PRADEEPKUMAR, S/O. -DO- -DO-
'CHAITHANYA', PARAMBATH P.O.,
THALAPULATHUR AMSOM AND DESOM, KOZHIKODE TALUK.
8 C.M. PRAMOD, S/O. C.M. CHANDUKUTTY
PARAMBATH P.O., THALAKULATHUR, CALICUT.
9 C.M. MEENA, D/O. C.M. CHANDUKUTTY, "ANUGRAHA" BYE-PASS
ROAD, NEAR NUT STREET, W/O. C.K. PRAKASAN, P.O.,
VADAKARA.
10 C.M. SUJATHA, D/O. C.M. CHANDUKUTTY, SREE VIHAR,
ELATHUR AMSOM AND DESOM, KOZHIKODE TALUK.
11 CHERUKUDI NATTUVAYAL SHARANYA (MINOR),
REPRESENTED BY NATURAL FATHER AND GUARDIAN AD LITEN-DO-
12 SUDHA (MINOR), REPRESENTED BY -DO- -DO-
[AS Nos.874/1997, 560/1997] 6
13 C.M. PRASANNA,
W/O. 2ND RESPONDENT MANJAPRA ESTATE .P.O.,
AMBALAVAYAL, WYNAD (DIED)
IT IS RECORDED THAT 13TH RESPONDENT DIED AND
RESPONDENTS 11 AND 12 ALREADY IN THE PARTY ARRAY ARE
HER LEGAL HERIS VIDE ORDER DATED 8.6.15 IN MEMO DATED
26.5.15 CF NO. 2131/15
14 POOCHAT CHINNAMMA,
D/O. POULOSE, THOMATCHAL AMSOM AND DESOM AT "MANJARA,
SULTHAN'S BATTERY TALUK, WAYANAD
15 UMESH,(MINOR) REPRESENTED BY HIS MOTHER CHERUKUNDY
MUTTUVAYAL RANI, ELATHUR P.O.,
KORAPUZHA, CALIICUT .
ADDL.R16 RANI,W/O. LATE PREMNATH, MATTAYIL HOUSE, PALKULANGAA,
THIRUVANANTHAPURAM 695 002.
ADDL.R17 VAISAKH, LATE PREMNATH, MATTAYIL HOUSE, PALKULANGARA,
THIRUVANANTHAPURAM 695 002.
ADDL.R18 VIDYA, D/O. LATE PREMNATH,
HOTEL CLASSIC, MATTAYIL HOUSE, PALKULANGARA,
THIRUVANANTHAPURAM 695 002.
LEGAL HEIRS OF DECEASED 6TH RESPONDENT ARE IMPLEADED AS
ADDITIONAL RESPONDENTS 16 TO 18 AS PER ORDER DATED
17.11.12 IN IA 1766/12
BY ADVS.SRI.A.SUDHI VASUDEVAN SR.-R2,R11-R13
SRI.P.GOPALAKRISHNAN NAIR-R6
SRI.MAHESH V RAMAKRISHNAN-R8
R10 BY ADVS.SRI.P.SANKARANKUTTY NAIR
SRI.K.SANDESH RAJA
KUM.VIDYA MENON
K.PUSHPAVATHY - R11 TO R13
JOSE JONES JOSEPH-R11 & R12
THIS APPEAL SUITS HAVING COME UP FOR ORDERS ON 02.11.2021,
ALONG WITH AS.874/1997, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
[AS Nos.874/1997, 560/1997] 7
JUDGMENT
A suit for partition was dismissed by the trial
court mainly on the ground of intestate succession
under Ext.B1 Will dated 30/10/1985 and Ext.B6 Will
dated 5/11/1988 as that of one Chandukutty, the
deceased father of both the plaintiff and the
defendants and Ext.B7 Will dated 23/3/1978 as that of
Bhargavi, the mother.
2. Some of the suspicious circumstances attached
to the execution of the Wills were brought to the
notice of this Court; (1)there is no consistency in
the manner in which these three Wills were prepared.
Ext.B1 is a handwritten while Exts.B6 is a typed one,
though it was alleged to have been executed by the
very same testator (2) there is a gap of around three
years between the alleged dates of execution of
Exts.B1 and B6, the signatures seen affixed as that
of the testator in both the documents appears to have
been affixed by using the very same pen and ink and
gives rise to a probable indication that both the
documents were prepared on the very same time and
date (3) in Ext.B1 and B6 Will, the name of the
scribe or the person who had prepared it was not
disclosed and there is a wilful attempt to wriggle
out of the liability to show and disclose the
identity of the person who had prepared it or the
scribe thereof (4) there is wilful attempt to stretch
the body of Ext.B1 and B6 Wills upto the place
wherein the signatures were found affixed as that of
the testator (5) In Exts.B1 and B6 Will, the
attesting witnesses are found to be the henchmen of
the respective legatees and their close associates
(6) one among the attesting witnesses Arayanparambil
Thilakan is the brother-in-law of the sole legatees
under Exts.B1 and B6 Wills (7) though Ext.B1 Will was
executed as early as on 30/10/1985 and the testator
passed away in the year 1990, it was not brought to
light for a long period upto 1991 (8) It is not
explained why it was sent to the propounder by the
brother-in-law by a registered post in the year 1991
(9) both the propounders to Exts.B1 and B6 pleaded
ignorance about the scribe and the person who had
prepared it, but advanced a strange case that it was
brought by the testator after its preparation (10) it
is an admitted case that earlier he had executed a
registered Will and subsequently it was cancelled, if
that be so, it is not explained why the subsequent
Wills, Exts.B1 and B6 were not registered (11) what
actually prompted the testator to prepare Ext.B1 as
handwritten and Ext.B6 as typewritten. (12) the very
same suspicious circumstance also brought out in so
far as Ext.B7 Will, wherein the very same persons
stood as attesting witnesses including the first
attesting witness, the brother-in-law of the sole
legatee Ariyanparambil Thilakan (13) in that document
also, there is an attempt to stretch the body of the
Will upto the place wherein the signature affixed as
that of the testator, mother. It is also a
typewritten one. The very same attesting witnesses
to Ext.B6 (the typewritten document) stood as witness
to Ext.B7. It is also a typewritten one (14) the
name and address of the 2nd attesting witness in both
the documents, Exts.B6 and B7 is seen affixed and
written by using the very same pen and ink, though
there is a gap of ten years between these two (15) a
pre-planned foul play is well evident between the
propounders and the attesting witnesses in
fabricating these three testaments as that of the
respective deceased.
3. Prima facie, it appears that Exts.B1, B6 and
B7 are the worst form of fabrication of a testament
as that of the respective testators. None of the
abovesaid suspicious circumstances were explained by
the respective propounders.
4. The second attesting witness to Ext.B6 is one
Madathil Dharmadeeran. It is dated 5/11/1988. In
Ext.B7 Will, though it was executed in the year 1978,
the very same witnesses were made as attesting
witnesses ie. Arayanparambil Thilakan and Madathil
Dharmadeeran, though there is a gap of ten years
between Exts.B6 and B7. It is strange enough that
the name and signature of the second attesting
witness to both the documents seen written and
affixed by using the very same pen which is well
evident from a mere perusal of Exts.B6 and B7 Wills,
though there is a gap of ten years between these two.
In Ext.B6 and B7, the very same method was adopted to
stretch the body of the Will upto the place wherein
the respective signatures were seen affixed as that
of the testators. In Ext.B7, the body of schedule
description was stretched upto the place wherein the
signature was found affixed as that of the testator.
This might be the reason why it was prepared using
typewriter so that the body can be extended upto the
place in accordance with their requirement. There is
a reasonable doubt as to whether these two documents
were prepared by using the very same typewriting
machine as there are close resemblances and
similarities in the letters in Exts.B6 and B7.
5. Yet another suspicious circumstance also
brought to the notice of this Court that in Ext.B1,
nothing has been mentioned with respect to the person
who had prepared it, the name and address of the
scribe was not disclosed. In Exts.B6 and B7 also,
the name of the person who prepared it was not
dislcosed. On the other hand, Ext.B1 is a
handwritten Will, wherein there is an attempt to
stretch the body of the document upto the place
wherein the signature found affixed as that of the
testator. In the second page of Ext.B1 Will, in the
last three paragraphs, gaps were given between the
paragraphs and also the lines so as to extend the
same upto the required place and in the last two
paragraphs the letters were written considerably
large in size so as to appear that there is no much
gap between the lines. But they utterly failed in
their attempt though the body was stretched upto the
place wherein the signature found affixed as that of
the testator. This might be the reason why Exts.B6
and B7 were prepared by using typewriter so that they
can stretch the body upto the place as required by
them after preparing a sample. The other attesting
witness is his younger brother, who is the legatee
under the other Will, Ext.B6, which would prima facie
show a collusion between the legatees under Exts.B1
and B6 with the respective attesting witnesses in
creating two documents in favour of the first and
sixth defendant. A clear illegal nexus is well
evident between the propounder of Ext.B1 Will, the
second defendant and Ext.B6 Will, the 6th defendant in
creating and fabricating these three documents,
Exts.B1, B6 and B7. While in the box, DW2, the 6 th
defendant pleaded ignorance with respect to the
person who had prepared Ext.B1 Will, though he stood
as an attesting witness to the document. Hence, it
is necessary to send Exts.B1, B6 and B7 Wills for
expert evidence.
6. Admittedly, earlier, the father had executed
a registered Will and it was subsequently cancelled.
If that be so, necessarily, it has to be explained
why the father has opted to brought up two
unregistered Wills, one is in handwriting and the
other as a typewritten without disclosing even the
scribe or the person who had prepared it. It would
act as another suspicious circumstance attached to
its execution and it will take away the genuineness
of all these three documents, Exts.B1, B6 and B7,
unless there is satisfactory explanation from the
propounder. During the course of evidence, it was
admitted by DW2 that the father had also executed a
sealed Will, but no evidence was tendered in that
behalf. As such, a remand of the matter cannot be
avoided.
Both the appeals are allowed accordingly by
setting aside the decree and judgment of the trial
court. The matter is remanded back to the trial court
for fresh disposal. The parties shall appear before
the trial court on 03/12/2021. The application
I.A.No.7/2009 will stand dismissed without prejudice
to the right of parties to produce the said document
before the trial court, if it is found necessary for
the determination of the issues involved. No costs.
Sd/-
P.SOMARAJAN
JUDGE
msp
