Kerala High Court
Vishalakshi vs Manohari on 2 March, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
WEDNESDAY, THE 2ND DAY OF MARCH 2022 / 11TH PHALGUNA, 1943
RFA NO. 660 OF 2012
AGAINST THE DECREE AND JUDGMENT IN OS 200/2006 DATED
01.03.2012 OF III ADDITIONAL SUB COURT, KOZHIKODE
APPELLANTS/PLAINTIFFS:
1 VISHALAKSHI, (DIED) LRS' IMPLEADED
W/O.BALAKRISHNAN, POOVATHUR MEETHAL, ARADHANA,
PADINJATTUMURI AMSOM, MORIKKARA DESOM, KOZHIKODE
2 SUMATHI,
W/O.PRAKASH, ARANGIL ESTATE, SULTHAN BATHERY,
BEENACHI AMSOM, BEENACHI DESOM,
3 SHEENA,
W/O.MURALEEDHARAN, KARAT HOUSE, CHAITHANYYA,
B.G.ROAD, NADAKKAVE, KOZHIKODE-11,KACHERI
AMSOM,KURUMBRAKATTUSSERI DESOM,
4 BEENA,
W/O.KARUNAKARAN, KELIKODAN HOUSE,
(DREAMS),MUNDUPARAMBA, MALAPPURAM AMSOM, DESOM,
MALAPPURAM
ADDL.A5 SHIMJITH B.V.,
AGED 42 YEARS, S/O.VISHALAKSHI, ARADHANA,
PUVATHOOR MEETHAL, P.O, KAKKODI, KOZHIKODE, PIN -
673611
ADDL.A6 PREEJITH B.V.,
AGED 44 YEARS, S/O.VISHALAKSHI, ARADHANA,
PUVATHOOR MEETHAL, P.O, KAKKODI, KOZHIKODE, PIN -
673611
ADDL.A7 BALAKRISHNAN, AGED 83 YEARS, H/O.VISHALAKSHI,
ARADHANA, PUVATHOOR MEETHAL, P.O, KAKKODI,
KOZHIKODE, PIN - 673611
LEGAL REPRESENTATIVES OF DECEASED IST APPELLANT IS
IMPLEADED AS ADDITIONAL APPELLANTS 5 TO 7 AS PER
ORDER DATED 02.03.2022 IN IA NO.1/2022
RFA No.660 of 2012 2
BY ADVS.
SRI.K.S.BHARATHAN
SRI.AADITHYAN S.MANNALI
SRI.ALPHIN ANTONY
SRI.ABEL ANTONY
SRI.CHRISTINE MATHEW
RESPONDENTS/DEFENDANTS:
1 MANOHARI,
W/O.BABU, KANDIYIL HOUSE, KOTTOOLI AMSOM,DESOM,
KOZHIKODE, PIN-673502
2 ARAVINDAN,
S/O.PACHUKUTTY, ARIKKANADATHU HOUSE, EASTHILL,
KACHERI AMSOM,DESOM, PIN-673502
3 AJITHA,
W/O.SURESH BABU, PREMIER TYRES, AJITH NIVAS,
PULIMUKKU ROAD, KOCHI-33, CHUNGAPUZHA NAGAR, PIN-
673502
4 RAJEEVAN,
S/O.PACHUKUTTY, ARIKKANADATH , KASHMIRAM,
EASTHILL, KACHERI AMSOM,KACHERI DESOM, PIN-673502
5 REENA,
W/O.RADHAKRISHNAN, THIPILIKKATT, NAMBOOTHIRI
PARAMBA,GOVINDAPURAM, VALAYANAD AMSOM, DESOM,
PIN-673502
BY ADVS.
SRI.P.A.HARISH
SRI.V.R.JAIKRISHNAN
SMT.RESMI NANDANAN
SRI.V.V.SURENDRAN
THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING
ON 02.03.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
RFA No.660 of 2012 3
P.B.SURESH KUMAR & C.S.SUDHA, JJ.
-----------------------------------------------
R.F.A No.660 of 2012
-----------------------------------------------
Dated this the 2nd day of March, 2022.
JUDGMENT
P.B.Suresh Kumar, J.
The defeated plaintiffs in a suit for partition are the
appellants.
2. The plaintiffs and defendants are the children
of one Pachukutty. The plaint B schedule item No.1 is a
residential property measuring 64 cents and the plaint B
schedule item No.2 is a commercial property measuring 17.5
cents. Both plaint B schedule item Nos.1 and 2 properties
belonged to Pachukutty. The plaint B schedule item No.3 is a
property over which Pachukutty was holding a tenancy right.
Pachukutty died on 18.06.1996. On his death, the plaint B
schedule properties devolved on his wife Sarojini and to the
parties to the suit who are his children. Sarojini died on
17.11.2005. According to the plaintiffs, who are four among the
daughters of Pachukutty, on the death of Sarojini, the plaint B
schedule properties devolved absolutely on plaintiffs and
defendants. The case set out by the plaintiffs in the plaint is
that the second defendant was taking care of the properties on
behalf of the plaintiffs and it was found that the second
defendant was not managing the properties properly and hence
the suit for partition. Prior to the institution of the suit, the
plaintiffs issued a lawyer notice to the defendants demanding
partition of the properties to which defendants 2 and 4, the
sons of Pachukutty caused to send a reply refuting the case set
out by the plaintiffs that plaint B schedule properties devolved
on the parties to the suit on the death of their parents. It was
stated in the reply notice that Pachukutty executed a will on
11.10.1994, in terms of which the plaint B schedule item No.1
property was bequeathed exclusively to defendants 2 and 4
and plaint B schedule item No.2 property was bequeathed
exclusively to his daughters including the plaintiffs. It was also
stated in the reply notice that the tenancy right Pachukutty had
over the plaint B schedule item No.3 property was bequeathed
in favour of the fourth defendant. It was also stated in the reply
notice that a loan was taken by the second defendant
mortgaging plaint B schedule item No.2 property during the life
time of Pachukutty and as provided for in the will, the second
defendant liquidated that liability. It was also stated in the reply
notice that in the light of the aforesaid disposition, the plaint B
schedule item No.1 property was partitioned later among
defendants 2 and 4. It was asserted in the reply notice by
defendants 2 and 4 that the fact that deceased Pachukutty had
left behind a will is known to the plaintiffs. It was also stated in
the reply notice that there was a tenant in the building in plaint
B schedule item No.2 property and he demanded a sum of
Rs.1.5 lakhs for surrendering the vacant possession of the
building and since their mother informed defendants 2 and 4
that the plaintiffs and other daughters of Pachukutty will not be
in a position to pay the said amount for obtaining possession of
the building, defendants 2 and 4 gave the said amount to their
mother and she, in turn, obtained possession of the building
from the tenant after paying the said amount to him on an
arrangement that she would be collecting rent of the building. It
was also stated in the reply notice that the mother of the
parties was accordingly receiving the rent of the premises in
plaint B schedule item No.2 property. According to the
plaintiffs, the statements aforesaid in the reply notice are all
incorrect; that Pachukutty has not executed any will in respect
of the suit properties and that the suit properties are partible
among the parties to the suit. The prayer in the suit, in the
circumstances, was for partition of 1/9 th share to each of the
plaintiffs in plaint B schedule properties.
3. Defendants 2 and 4 filed separate written
statements reiterating the stand taken in the reply notice sent
by them to the lawyer notice of the plaintiffs and contending
that the suit properties are not partiable as claimed in the suit.
Defendants 1, 3 and 5 filed a written statement on 13.11.2006
supporting defendants 2 and 4. The first defendant, however
retracted from the stand taken in the written statement filed by
her on 13.11.2006, contending that the written statement
dated 13.11.2006 is one caused to be filed by the second
defendant making use of the blank signed papers given to him
by her for some other purpose.
4. The fourth plaintiff gave evidence on behalf of
the plaintiffs as PW1. Exts.A1 to A4 were the documents
marked on the side of the plaintiffs. Among the said documents,
Ext.A1 is the vakalath filed by the plaintiffs and defendants
together in a Rent Control Appeal viz, R.C.A. No.24 of 1997 and
Ext.A2 is the certified copy of the order in the said case. Ext.A3
is the lawyer notice issued on behalf of the plaintiffs to the
defendants and Ext.A4 is the reply notice caused to be sent on
behalf of defendants 2 and 4. The fourth defendant gave
evidence on the side of the defendants as DW1. Exts.B1 to B8
were the documents marked on the side of the defendants.
Among the said documents, Ext.B1 is the will stated to have
been executed by Pachukutty on 11.10.1994 and Ext.B7 is the
partition deed executed between defendants 2 and 4 in respect
of plaint B schedule item No.1 property. A witness was
examined on the side of the defendants as DW2 to prove the
execution of Ext.B1 will.
5. The court below found that the defendants
have proved the execution of Ext.B1 will and the plaintiffs,
therefore, are entitled to a decree for partition only in respect of
plaint B schedule item No.2 property. Accordingly, a preliminary
decree was passed directing partition of the 1/7th share to each
of the plaintiffs and defendants 1, 3 and 5 in respect of the
plaint B schedule item No.2 property. The plaintiffs are
aggrieved by the said decision of the court below and hence
this appeal.
6. Heard the learned counsel for the plaintiffs and
the learned counsel for defendants 2 and 4.
7. DW2 is one of the persons shown in Ext.B1 will
as an attester to the said document. It was stated by DW2 in
cross-examination that he did not instruct anything to the
lawyer who prepared the affidavit filed by him in lieu of chief
examination. The relevant portion of the deposition reads thus:
"അദ ഹത ന ഞ ൻ സമൻസ മ ത ദമ ക ണ ച
കക ട ത ട ള . അദ ഹ ദ ക ദ ഖകക ന
പ ദ! ധ ച ട ല. അദ ഹത ന ഞ ൻ യ ക
ക % പ ഞ കക ട ത ട ല. "
Similarly, DW2 has also stated in cross-examination that he was
shown the place where he has to put his signature in the will by
Pachukutty and he has accordingly put his signature and he has
no other connection with the will. The relevant portion of the
said deposition of DW2 reads thus:
1994 ഒകദട ബർ പ കന ന ന ണ
ഒസ യത ൽ ഒപ ച . എന ക ഒപ ദടണ
സല ക ണ ച ന പ ചകട യ ണ .
പ ചകട ന എന ക ഒപ ട ന ള സല
ക ണച ന . ഞ ൻ ദപ എഴ ഒപ ക ച .
ദസ മസ ന ൻ എന പ ഞ ആ കന
കക ണ പ ചകട ഒസ യത ൽ
ഒപ ട4ച ട ണ. ഇ ണ ഞ ന ഒസ യത
മൽ ഉള ബന . ദ ക ഈ
ഒസ യത മ യ ക %ങൾ ഒന
എന ക യ ല.
Placing reliance on the aforesaid evidence of DW2, the learned
counsel for the plaintiffs contended that no reliance can be
placed on the proof affidavit filed by DW2. According to the
learned counsel, going by the evidence tendered by DW2, it can
only be inferred that DW2 has affixed signatures in the proof
affidavit without knowing the contents of the same. That apart,
it was also argued by the learned counsel that the cross-
examination of DW2 would show that DW2 has not seen the
testator putting his signature on the will as required in terms of
Section 63 of the Indian Succession Act. According to the
learned counsel, it is therefore a case where the execution of
Ext.B1 will has not been proved. It was also argued by the
learned counsel that the execution of Ext.B1 will is also
shrouded by suspicious circumstances. It was pointed out by
the learned counsel that while the testator has given plaint B
schedule item No.1 property, a land measuring 64 cents to his
two sons, he has given to his seven daughters only a land
measuring 17.5 cents. The aforesaid conduct of the testator,
according to the learned counsel, is prima facie suspicious,
being a conduct not expected from a person under normal
circumstances. The argument of the learned counsel is that
insofar as the disposition of properties was in the aforesaid
fashion, there should have been a satisfactory explanation from
the defendants as to why the deceased has not treated his
children alike. It was also pointed out by the learned counsel
that it has come out in evidence that plaint B schedule item
No.2 was mortgaged for the purpose of securing the loan
availed by the second defendant and such a property would not
have been given at any rate by the testator to his daughters.
According to the learned counsel, the same is also a
circumstance which makes the execution of the will suspicious.
It was pointed out by the learned counsel that deceased
Pachukutty was the appellant in R.C.A No.24 of 1997 instituted
challenging the order dismissing an application preferred by
him for eviction of the tenant in the shop building in plaint B
schedule item No.2 property. Pachukutty died pending the said
proceedings. It was also pointed out that it has come out in
evidence that the fourth defendant came to know of the will
immediately after the death of Pachukutty. According to the
learned counsel, if that be so, there was absolutely no reason
for defendants 2 and 4 to prefer an application along with their
sisters to get themselves impleaded in the proceedings as
additional appellants for pursuing the appeal. According to the
learned counsel, from the said circumstances, it could be
inferred that Ext.B1 is a false document created by defendants
2 and 4 after they got themselves impleaded as additional
appellants in the said appeal.
8. Per contra, the learned counsel for defendants
2 and 4 submitted that the proof affidavit filed by DW2 in lieu of
chief examination would satisfy the requirements of law as
regards proof of will especially the requirements contained
under Section 63 of the Indian Succession Act. It was argued by
the learned counsel that although DW2 was cross examined by
the counsel for the plaintiffs, the evidence tendered by DW2 in
this regard has not been discredited in any manner. It was also
argued by the learned counsel that DW2 has categorically
stated in his evidence that proof affidavit has been prepared by
the counsel to whom he has approached on receipt of summons
from the court as instructed by him and that since DW2 has
categorically stated in his proof affidavit that he has seen the
testator putting his signature in the will, it is irrelevant as to
whether he has stated so in cross-examination. The learned
counsel has argued that the parties belong to Thiyya
community of Malabar and there is a custom among the
members of the said community to give the residential property
of the parents to the male children. It was also pointed out by
the learned counsel that it has come out in evidence that plaint
B schedule item No.1 is a residential property situated in an
interior place whereas plaint B schedule item No.2 is a property
situated very close to a Highway. As such, according to the
learned counsel, it cannot be said that deceased Pachukutty
has not treated his children alike while executing Ext.B1 will. It
was also pointed out by the learned counsel that it is all the
more so since Pachukutty has given away all his daughters in
marriage during his lifetime.
9. We have considered the arguments advanced
by the learned counsel for the parties on either side. We have
also perused the materials on record.
10. In the light of the provisions contained in
Section 68 of the Indian Evidence Act and Section 63 of the
Indian Succession Act, the first and foremost question to be
considered is whether the propounders of Ext.B1 will have
proved the execution of the same. It is not disputed that DW2 is
shown as an attesting witness in Ext.B1 will and DW2 was
therefore examined for proving the execution of Ext.B1. The
learned counsel for the plaintiffs conceded that the proof
affidavit filed by DW2 is one conforming to the requirements of
Section 63 of the Indian Succession Act. The attempt of the
counsel, on the other hand, was to establish that the proof
affidavit is one prepared at the dictation of someone else and
that the witness has merely put his signature on the same. It
was also the attempt of the counsel that DW2 has not seen the
testator putting his signature on the will. We are not impressed
by the said arguments. The question whether a witness has
been discredited in cross examination is one to be understood
having regard to his cross-examination as a whole and not by
placing reliance on stray statements therein. In the case on
hand, it was categorically stated by the witness in cross
examination that the proof affidavit was one prepared by his
counsel as instructed by him. The said part of the deposition of
DW2 in cross examination reads thus:
"ഞ ൻ പ ഞ കക ട ത ക %ങൾ ക4ൽ ദ ഖയ ല ക ."
It is true that DW2 did not say in cross examination that he has
seen the testator putting his signature on the will as required in
terms of Section 63 of the Indian succession Act. But as rightly
pointed out by the learned counsel for defendants 2 and 4,
what is to be seen by the court is whether the witness has been
discredited on his statement in the proof affidavit that he has
seen the testator putting his signature on the will. We have
examined the cross-examination of DW2 meticulously and we
do not find anything in cross examination which would tend to
discredit the version of DW2 in the affidavit filed by him in lieu
of chief examination that he has seen the testator putting his
signature on the will and also that he and other attesting
witness to the will have put their signatures in the will in the
presence of the testator. In the circumstances, we are in
agreement with the finding rendered by the court below that
the execution of the Ext.B1 will is duly proved.
11. The question remaining to be considered is as
to whether the propounders of the will have removed the
suspicious circumstances, if any, surrounding the execution of
the will. It is by now settled that suspicion cannot be removed
by mere assertion of the propounder that the will bears the
signature of the testator or that the testator was in a sound and
disposing state of mind and memory at the time of execution of
the will or that those like the wife and children of the testator
who would normally receive their due share in his estate were
disinherited because the testator might have had his own
reasons for excluding them. The presence of suspicious
circumstances make the initial onus heavier and therefore, in
cases where the circumstances attendant upon the execution of
the will excite suspicion of the Court, the propounders have to
remove all legitimate suspicions before the document can be
accepted as the last will of the testator.
12. Before going into the question as to whether
the testator has satisfactorily removed legitimate suspicions
surrounding the execution of the will, it is necessary to refer to
a few facts which are not disputed. Ext.B1 is a will claimed to
have been executed on 11.10.1994. The testator breathed his
last on 18.6.1996. Before the death of the testator, he has
given away in marriage all his daughters and all of them are
reasonably settled in life. One of the attesting witnesses to
Ext.B1 will is none other than the brother of the wife of the
testator namely Somasundaram. Somasundaram is a person
who was maintaining good relationship with all. Somasundaram
died pending suit and it is thereafter that DW2 was examined to
prove the will. DW2 was the partner of Somasundaram in his
transport business. The evidence of DW2 is that they have
attested Ext.B1 will at the office of the partnership business he
had with Somasundaram. After the death of the testator,
defendants 2 and 4 partitioned the property allotted to them in
terms of the will by executing a partition deed. Ext.B7 is the
said partition deed executed on 3.12.97. Somasundaram and
DW2 are signatories to Ext.B7 partition deed as well.
Thereupon, the second defendant constructed a residential
building in the portion of the property allotted to him in Ext.B7
partition deed after obtaining building permit from the local
authority. Even though it was pleaded by the plaintiffs that the
construction of the residential building by the second defendant
in the property allotted to him in terms of Ext.B7 partition deed
was with the consent of the remaining legal representatives of
Pachukutty, they could not satisfactorily establish the said fact
when disputed by the second defendant in the written
statement filed by him. Even though B schedule item No.2 was
a property mortgaged for securing a loan availed by the second
defendant pursuant to the disposition made by the testator in
Ext.B1 will, the second defendant liquidated that liability and
obtained release of the mortgage. There was a tenant in plaint
B schedule item No.2 property and when proceedings initiated
by deceased Pachukutty for his eviction ended up unsuccessful,
after paying Rs.1.5 lakhs to the tenant by defendants 2 and 4,
he was evicted from the property, which is stated to be on an
understanding that the rent from the building in the said
property would be received by the mother of the parties. The
suit was filed much later in the year 2006, after the death of the
mother of the parties. Apart from all that, in the suit, three
among the sisters have filed a written statement taking the
stand that Ext.B1 is a will executed by deceased Pachukutty
and that the plaintiffs were also aware of the execution of the
same, although one among them later retracted from the said
stand. The aforesaid are facts which would probabilise the
execution of the will in the nature of Ext.B1.
13. Be that as it may, let us now consider the
alleged suspicious circumstances surrounding the execution of
Ext.B1 will as highlighted by the learned counsel for the
plaintiffs. As noted, one of the circumstances pointed out by the
learned counsel for the plaintiffs to contend that Ext.B1 will is
not genuine is that the property given to the sons who are only
two in number is a property measuring 64 cents and the
property given to the daughters who are seven in number is a
property measuring 17.5 cents. According to the learned
counsel, the aforesaid would cast suspicion as to the
genuineness of Ext.B1 will. It is settled that merely for the
reason that a person has not treated his children alike while
making a disposition, it cannot be said that the disposition is
not genuine, for, the very purpose of disposition in the form of
will is to give away properties otherwise than in accordance
with the law of succession[See Velayudhan Nair v.
Kalliyanikutty Amma, 2006 (1) KLT 884 and S.Sundaresa
Pai v. Sumangala T. Pai, (2002) 1 SCC 630]. In other words,
the question whether such a disposition would create suspicion
is one to be decided having regard to the facts of the case. As
noted, plaint B schedule item No.1 is a residential property
whereas, plaint B schedule item No.2 is a commercial property
situated near a highway. That apart, it is a case where the
disposition has been made by the testator after giving away all
his daughters in marriage by spending substantial amounts. It
has come out in evidence that plaint B schedule item No.2 is a
portion of a larger extent of property and the same excluding
the plaint B schedule item No.2 property was sold by deceased
Pachukutty in connection with the marriage of his daughters. It
is therefore evident that the said property is earmarked by
deceased Pachukutty for his daughters. There is, therefore,
force in the argument advanced by the learned counsel for
defendants 2 and 4 that there is nothing suspicious in the
conduct of the testator in giving the said property to his
daughters who have been given away in marriage by him,
reserving his family property for his sons. Merely for the reason
that plaint B schedule item No.2 property stood mortgaged to a
bank for securing a loan availed by the second defendant, it
cannot be contended that the will is suspicious, for, it is on
account of the said reason that a provision was made in the will
to the effect that the second defendant shall release the said
mortgage after liquidating the liability, especially when
bequeaths subject to similar condition are common. Another
argument advanced by the learned counsel for the plaintiffs is
that if the will has come to the notice of defendants 2 and 4
immediately after the death of the testator as claimed by them,
there was no need at all for defendants 2 and 4 to join
themselves as additional appellants in R.C.A No.24 of 1997, for
in the light of Ext.B1 will, if it is a genuine one, the legatees
under the will could have pursued the appeal in the place of the
testator. In order to consider this argument, one should see the
ground realities also. Decisions on these aspects are not
normally taken by the parties on their own volition, but on the
advice of the lawyers engaged by them in the respective
matters. As such, merely for the reason that the sons got
themselves impleaded as the legal representatives of
Pachukutty in a pending proceedings, it cannot be said that
Ext.B1 is not a genuine document.
In the light of the above discussions, we do not find
any merit in the appeal and the same is, accordingly,
dismissed.
Sd/-
P.B.SURESH KUMAR, JUDGE.
Sd/-
C.S.SUDHA, JUDGE.
Mn
