Kamalam vs Venugopal
2022 Latest Caselaw 7279 Ker

            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
            THE HONOURABLE MR. JUSTICE SATHISH NINAN
  THURSDAY, THE 23RD DAY OF JUNE 2022 / 2ND ASHADHA, 1944
                       RSA NO. 1309 OF 2014
  AGAINST THE JUDGMENT IN OS 395/2009 OF PRINCIPAL MUNSIFF
                         COURT, PALAKKAD
    AS 170/2011 OF II ADDITIONAL DISTRICT COURT,PALAKKAD
APPELLANT/APPELLANT/PLAINTIFF:

            KAMALAM, AGED 64 YEARS,D/O. SIVARAMAN, KAPPIL
            HOUSE, MUNDUR AMSOM AND DESOM, PALAKKAD TALUK AND
            DISTRICT.
            BY ADVS.
            SRI.M.R.VENUGOPAL
            SRI.V.MURALIKRISHNA IYER
            SMT.DHANYA P.ASHOKAN


RESPONDENT/RESPONDENT/DEFENDANT:

            VENUGOPAL, 53 YEARS,S/O. SIVARAMAN, CHULLIKODE,
            KAIKATTY POST, KOTHAGIRI, NILGIRI DISTRICT,
            TAMILNADU - 643217.
            BY ADV SRI.JACOB SEBASTIAN(CAVEATOR)


     THIS    REGULAR   SECOND     APPEAL     HAVING    COME    UP    FOR
ADMISSION    ON   23.06.2022,     THE     COURT   ON   THE    SAME   DAY
DELIVERED THE FOLLOWING:
                     Sathish Ninan, J.
             ==============================
                  R.S.A No.1309 of 2014
               ==========================
          Dated this the 23rd day of June, 2022

                        JUDGMENT

The concurrent dismissal of a suit for partition

is under challenge by the plaintiff.

2. Plaintiff and the defendant are siblings(sister

and brother). The plaint schedule property belonged to

their father and mother. Both the father and mother are

no more. The mother predeceased the father. According to

the plaintiff, their father had executed Ext A4 Will,

bequeathing his one half share over the property in

favour of the plaintiff. The remaining one half that

belonged to the mother vested with the plaintiff and the

defendant in equal shares. On the said claim, the suit

is filed for partition of the one half share of their

mother.

3. The defendant resisted the suit on the strength

of Ext B1 Will executed by their father and Ext B2 Will

executed by their mother where under, the respective

shares of the father and mother had been bequeathed in

his favour.

4. On appreciation of the evidence, the trial court

found that Ext B1 and B2 Wills are genuine, and

dismissed the suit. The decree was affirmed in Appeal,

against which the Second Appeal is filed.

5. Heard the learned counsel Sri.M.R.Venugopal on

behalf of the appellant and Sri. George Sebastian,

learned counsel for the respondent, on the following

Substantial Question of Law.

"1. Is the evidence on record sufficient to uphold Exts B1

and B2 Wills to be valid?

2. Has there been total misreading of the evidence by the

Courts below?"

6. The genuineness of Ext A4 Will in favour of the

plaintiff, is not disputed. However, according to the

defendant, the father had subsequently, on 24.11.2006,

executed Ext B1 Will revoking Ext A4 and bequeathing his

rights over the property to the defendant. The plaintiff

challenges the genuineness of Ext B1 Will. Ext B1 is a

registered Will. Photograph of the testator is affixed

on the Will and was duly attested by the Sub Registrar.

It contains the thumb impression of the testator. The

mental, physical and testamentary capacity as on the

date of Ext.B1 is not denied by the plaintiff. In fact,

the plaintiff, while examined as PW1 admits about the

mental capacity and health of the father at the time of

his death. PW1 admits that during the life time of the

father she was given other properties earlier. In Ext B2

Will executed by the mother, it is said that the

plaintiff was given in marriage giving sufficient assets

towards her share and hence the property is being

bequeathed to the defendant. Ext B1 Will mentions that

the plaintiff is married and is well settled in life and

that the father intends to provide the property to the

son. One of the witnesses to Ext B1 Will has been

examined as DW2. Nothing has been brought out in his

cross examination to discredit him.

7. As regards Ext B2 Will, the scribe has been

examined as DW3 and one of the attesters were examined

as DW4. The execution of the Will by the testator is

duly proved by their evidence. Except for the contention

that it is suspicious as to why the husband did not

attest the Will, no reason could be suggested why their

evidence could not be accepted. The mere fact that the

husband did not attest the Will cannot be said to be a

suspicious circumstance. The attestor is their family

friend and the parties must have considered him to be

the best person to be a witness - an independent

witness. That the testator had sound disclosing state of

mind at the time of execution of Ext B2 Will is spoken

to by the witness. The evidence on record was properly

appreciated by the courts below and have held Exts B1

and B2 Wills to be valid and genuine. The findings are

based on materials. There is no perversity in the

appreciation of evidence. There is merit in the

challenge raised. The substantial questions of law are

thus answered against the appellant.

In the result, the Second Appeal fails and is

accordingly dismissed.

Sd/-

Sathish Ninan, Judge

vdv