Padikkal Suresh vs T.C. Pradeepa
2022 Latest Caselaw 5268 Ker

                                                      "C.R."
          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                          PRESENT
        THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
                             &
         THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
  TUESDAY, THE 17TH DAY OF MAY 2022 / 27TH VAISAKHA, 1944
                  O.P.(RC) NO. 199 OF 2018

AGAINST THE ORDER DATED 31.08.2018 IN R.C.R.P.NO.1 OF 2016
    OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL
    DISTRICT JUDGE-III), THALASSERY AND THE ORDER DATED
19.10.2015 IN E.P.NO.307 OF 2012 IN R.C.P.NO.63 OF 1996 OF
     THE RENT CONTROL COURT (PRINCIPAL MUNSIFF), KANNUR

PETITIONERS:

    1    PADIKKAL SURESH
         AGED 84 YEARS, S/O. PADIKKAL DEVAKI, DOOR NO.622,
         NEAR ENGLISH CHURCH, TALAP, KANNUR-2.
    2    PADIKKAL GEETHA,
         AGED 52 YEARS, D/O. PADIKKAL DEVAKI, -DO-DO.
    3    PADIKKAL USHA,
         AGED 50 YEARS, D/O. PADIKKAL DEVAKI, -DO-DO.
         BY ADVS.
         SMT.SHIBI. K.P.
         SRI.C.K.SUNIL
         SMT.T.T.JAYANTHY
         SMT.K.S.ARUNI RAJ

RESPONDENT:

         T.C. PRADEEPA
         AGED 52 YEARS, D/O. T.M. SATHYANARAYANAN,
         OFFICE EXECUTIVE, RESIDING AT SATHYA PRABHA,
         KAKKAD, KANNUR-670005.
                                     2
O.P.(RC) Nos.199 of 2018 &
3 of 2019


            BY ADVS.
            SRI.SUNIL V.MOHAMMED
            SHRI.CHANDRAN K.C.
            M.HEMALATHA

      THIS OP (RENT CONTROL) HAVING COME UP FOR FINAL HEARING
ON   31.03.2022,    ALONG    WITH   O.P.(RC).3/2019,   THE   COURT   ON
17.05.2022 DELIVERED THE FOLLOWING:
                                   3
O.P.(RC) Nos.199 of 2018 &
3 of 2019




            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
          THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
                                  &
            THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
   TUESDAY, THE 17TH DAY OF MAY 2022 / 27TH VAISAKHA, 1944
                       O.P.(RC) NO. 3 OF 2019
 AGAINST THE ORDER DATED 31.08.2018 IN RCRP NO.2 OF 2016 OF
  THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT
   JUDGE-III), THALASSERY AND THE ORDER DATED 19.10.2015 IN
E.P.NO.308 OF 2012 IN R.C.P.NO.67 OF 1996 OF THE RENT CONTROL
                       COURT (MUNSIFF), KANNUR
PETITIONERS:

     1      MANIRAJ
            AGED 75 YEARS, S/O.MULLATHUKANDY VAAJA PALANI
            NAIKER, RESIDING AT R.R.IV-621, NEAR ENGLISH
            CHURCH, TALAP, KANNUR - 2.
     2      HEMA
            AGED 73 YEARS, D/O.MULLATHUKANDY VAAJA PALANI
            NAIKER, -DO- -DO-
     3      VIJAYAN
            AGED 70 YEARS, S/O.MULLATHUKANDY VAAJA PALANI
            NAIKER, -DO- -DO-
            BY ADVS.
            K.R.AVINASH (KUNNATH)
            ABDUL RAOOF PALLIPATH
            E.MOHAMMED SHAFI
                                    4
O.P.(RC) Nos.199 of 2018 &
3 of 2019



RESPONDENT:

            T.C.PRADEEPA
            D/O.T.M.SATHYANARAYANAN, AGED 52 YEARS, OFFICE
            EXECUTIVE, RESIDING AT SATHYA PRABHA, KAKKAD,
            KANNUR - 670 005.
            BY ADVS.
            SRI.SUNIL V.MOHAMMED
            SHRI.CHANDRAN K.C.



      THIS OP (RENT CONTROL) HAVING COME UP FOR FINAL HEARING
ON 31.03.2022, ALONG WITH OP (RC).199/2018, THE COURT ON
17.05.2022 DELIVERED THE FOLLOWING:
                                        5
O.P.(RC) Nos.199 of 2018 &
3 of 2019


                                                                         "C.R."
                                JUDGMENT

Ajithkumar, J.

These Original Petitions are filed under Article 227 of the

Constitution of India. The common order, Ext.P2 dated 31.8.2018

of the Rent Control Revisional Authority (Additional District Judge-

III), Thalassery, in RCRP Nos.1 and 2 of 2006, which were filed

under the proviso to Section 14 of the Kerala Buildings (Lease and

Rent Control) Act, 1965 (the Act) is under challenge. As per

Ext.P2, order of the Execution Court (Principal Munsiff), Kannur,

dated 19.10.2015, Ext.P1 was reversed.

2. R.C.P.Nos.63 and 67 of 1996 were filed by one

Puthenpurayil Rajan. He was the landlord. He filed the Rent

Control Petitions seeking eviction of the respective tenants under

Section 11(3) of the Act. The order of eviction became final when

this Court on 31.5.2011 dismissed the respective Rent Control

Revisions preferred by the tenants. As per the order in the Rent

Control Revisions, this Court directed the Execution Court to keep

the execution proceedings in abeyance till 31.12.2011, subject to

the following conditions:-

"The revision petitioners file an affidavit before the

O.P.(RC) Nos.199 of 2018 & 3 of 2019

execution court or the rent control court, as the case may be, undertaking to give peaceful surrender of the building in question to the respondent on or before 31.12.2011 and undertaking further to discharge the arrears of rent, if any, within six weeks from today and also to pay occupational charges at the existing contract rent rate to the respondent without fail. We make it clear that the revision petitioner will get the benefit of time granted as above only if he files the affidavit on time and honours the undertakings therein."

3. The respective tenants, who are the petitioners herein,

did not file an affidavit as directed above. The landlord

Sri.Puthenpurayil Rajan filed execution petitions for getting

delivery of the respective petition schedule rooms. He could not,

however, take delivery of the premises for, he died on 13.12.2011.

4. After the death of Sri.Puthenpurayil Rajan, the

respondent herein filed E.P.Nos.307 and 308 of 2012 in the

respective Rent Control Petitions before the Execution Court for

getting delivery of the petition schedule premises. She claimed

rights under an unregistered Will executed by Sri.Puthenpurayil

Rajan. The execution petitions were contested by the petitioners

on identical grounds. It was contended that the Will propounded

by the respondent is a forged one and that was why the execution

petitions filed by Sri.Puthenpurayil Rajan, namely, E.P.Nos.91 and

O.P.(RC) Nos.199 of 2018 & 3 of 2019

99 of 2011 were not pursued. The Will propounded by the

respondent is a fabricated one and is surrounded by suspicious

circumstances. It was further contended that eviction was sought

by Sri.Puthenpurayil Rajan on the ground that he wanted the

petition schedule rooms for his starting an automobile workshop

with parking facility and as he is no more, order of eviction has

become inexecutable.

5. The respondent claimed before the Execution Court that

she was the legatee under Ext. A1, Will dated 7.9.2003 executed

by Sri.Puthenpurayil Rajan and hence she is the legal

representative entitled to execute the orders of eviction. That

apart, Sri.Puthenpurayil Rajan obtained the petition schedule

premises from her wife, Smt. Vinodhini, on her death, and as the

couple died issueless, this property whould naturally devolve upon

her relatives only. The respondent contended that she being the

daughter of the sister of Smt. Vinodhini, she is an heir by

operation of the provisions of section 15 of the Hindu Succession

Act, 1956 and therefore there is nothing unusual in executing such

a Will. Accordingly, the respondent contended that she had every

right to get the orders of eviction executed. The other contention

O.P.(RC) Nos.199 of 2018 & 3 of 2019

that with the death of Sri.Puthenpurayil Rajan, the ground for

eviction ceased to exist and hence the order of eviction has

become inexecutable is refuted contending that on becoming the

order of eviction final and the property has become assets of

Sri.Puthenpurayil Rajan, his subsequent death cannot have the

effect of nullifying the order of eviction.

6. The Execution Court recorded oral evidence of PW1 and

marked Exts.A1 and A2. After elaborate consideration, the

Execution Court had come to the conclusion that execution of

Ext.A1 Will was not properly proved and therefore, the respondent

was not entitled to pursue the execution petitions. In the revision

filed by the respondent under the proviso to Section 14 of the Act,

the Revisional Authority found that the evidence on record was

sufficient to prove execution of Ext.A1. Accordingly, the Revisional

Authority held that E.P.Nos.307 and 308 of 2012 are maintainable.

The Execution Court was thereby directed to effect delivery, within

a period of two weeks.

7. On 21.12.2018, these Original Petitions were admitted

and notice was directed to the respondents. Further proceedings

in the execution petitions were stayed initially for a period of one

O.P.(RC) Nos.199 of 2018 & 3 of 2019

month and the order has been extended from time to time and is

in force.

8. Heard the learned counsel appearing for the petitioners

and the learned counsel appearing for the respondent.

9. Two questions involved in this matter. Firstly, whether

on the death of Sri.Puthenpurayil Rajan the order of eviction has

become inexecutable. Secondly, whether the respondent has

obtained the right and interest of the landlord in the petition

schedule premises.

10. The learned counsel appearing for the respective

petitioners would submit that since the eviction was ordered on

the ground of bona fide need of the building for own occupation of

the landlord, his death eclipsed on the said need whereby the

order of eviction has become inexecutable. It is contended that

the Revisional Authority went totally wrong in holding that the

death did not have the result of annulling the order of eviction,

since the death was after the order had become ripe for execution.

11. We have pointed out above that the revision petition

was dismissed, however, granting time till 31.12.2011 to the

petitioners-tenants to vacate the buildings. This Court granted

O.P.(RC) Nos.199 of 2018 & 3 of 2019

time by directing to keep the proceedings in the execution petition

in abeyance on the specific condition that the tenants should file

an affidavit before the Execution Court or the Rent Control Court

within six weeks from the date of that order ie.31.5.2011

undertaking to surrender vacant possession of the tenanted

premises to the landlord on or before 31.12.2011. It was made

clear that the benefit of such extension of time would be available

only if the tenants file the affidavit on time. It is an admitted fact

that the petitioners did not file affidavits within the time of six

weeks fixed by this Court. Thereby the tenants forfeited their right

to continue in the premises till 31.12.2011 and the order of

eviction has become executable on the date of expiry of six weeks

from 31.5.2011 itself.

12. A similar situation was considered by this Court in

Puthiya Purayil Kanamadathil Valsala v. Sulochana K.C. and

others [2019 (4) KLJ 732]. In that case, eviction was ordered

on the ground of bona fide need of one of the landlords, the 5 th

petitioner therein, that he required to start a garment unit in

the petition schedule premises. When the matter reached this

Court by the tenant filing a Revision Petition, this Court directed to

O.P.(RC) Nos.199 of 2018 & 3 of 2019

grant the tenant a period of eight months to vacate the premises,

subject to the condition that he should file an affidavit before the

Execution Court undertaking to vacate the premises. In

compliance of that order, the tenant had filed an undertaking on

08.04.2019. The period of eight months granted to the tenant to

vacate the premises was to expire on 22.09.2019. The 5th

petitioner died on 04.07.2019. Legality of execution of the order of

eviction in the said circumstances was in question. This Court held

that "the order of eviction has become final and the fruits of the

decree formed part of the estate of the deceased, which his legal

heirs are entitled to enjoy. On the death of the landlord, an order

for eviction on the ground of bona fide need would not become a

nullity by operation of any law and therefore the same could not

be said inexecutable." This Court took the said view following the

principles laid down by the Apex Court in P.V.Papanna and

others v. K.Padmanabhaiah [(1994) 3 SCC 316].

13. The only difference to this case from the facts of the

afore-mentioned decision is that the petitioners herein did not file

the affidavit of undertaking as directed in the orders in the

Revision Petitions. The consequence of the failure to file affidavit

O.P.(RC) Nos.199 of 2018 & 3 of 2019

as envisaged in the orders is that the tenants became disentitled

to continue in the premises till 31.12.2011. That means on the

lapse of six weeks from 31.05.2011 the order of eviction has

become final and formed part of the estate of Sri.Puthenpurayil

Rajan. Therefore, the principle laid down by this Court in Puthiya

Purayil Kanamadathil Valsala (supra) is equally applicable to

this case. We respectfully agree with the said preposition.

Accordingly, we find no error in the finding of the Revisional

Authority that the legal representative of Sri.Puthenpurayil Rajan

has every right to execute the order of eviction.

14. This takes us to the next contention raised by the

petitioners that since Sri. Puthenpurayil Rajan died, it is not

possible for him to occupy the tenanted premises for the intended

purpose, and therefore they will be entitled to have re-entry as

provided in section 11(12) of the Act. As such the execution

proceedings will be a futile exercise and therefore the execution

petitions are liable not to be entertained. Section 11(12) confers a

statutory right on the quondam tenant, the tenant who was

evicted, to apply for restitution to the Rent Control Court, if the

landlord fails to occupy the building within one month of the

O.P.(RC) Nos.199 of 2018 & 3 of 2019

delivery without reasonable cause. Object behind this provision is

to protect tenants from unscrupulous evictions. In a logical

interpretation we can see that the legislature intended only that

the landlord shall not be allowed to evict a tenant on the ground of

bona fide need of own occupation, unless he really needs it. If,

after eviction, for a contributing reason he fails to occupy the

building, the tenant has every right to repossess it. On the other

hand, if the non occupation is on account of some supervening

reasons like death, destruction of building, etc., that does not

create a cause of action under section 11(12) of the Act.

15. Legislative intent is more clear if we look at the 3rd

proviso to Section 11(3) of the Act. The 3rd proviso obligates a

purchaser of the building, in respect of which there already is on

order of eviction on the ground of bona fide need, to convince the

Court that the purchaser too has a bona fide need, if he has to get

vacant possession of the building. Such a restriction is not there if

the transfer is by succession, be it testamentary or intestate.

Therefore, we hold that the Execution Petitions are maintainable

and would not come within the mischief of Section 11(12) of the

Act.

O.P.(RC) Nos.199 of 2018 & 3 of 2019

16. The respondent claiming to be the legatee under

Ext.A1, sought to execute the order of eviction and hand over

possession of the tenanted premises to her. One of the grounds to

find the said claim in favour of the respondent by the Revisional

Authority is that the petitioners were not entitled to deny the title

to the petition schedule premises by virtue of the provisions of

Section 116 of the Evidence Act, 1872. The learned counsel

appearing for the petitioners would contend that the said view is

obnoxious, inasmuch as, the petitioners never attorned the

respondent as the landlord, and therefore, such a bar is not

applicable to the petitioners. The definite case of the petitioners is

that the respondent has not obtained the right of the landlord,

either by way of intestate succession or under Ext.A1 Will having

its execution not been proved, and therefore there cannot be any

estoppel under Section 116 of the Evidence Act.

17. In Thomas P. E. and others v. Abraham Jose Rocky

and others [2019 (3) KLT 140], this Court while considering a

similar plea has held

"On a careful reading of Section 116 of the Evidence Act, it will be clear that what is prohibited therein by a rule of estoppel is to the effect that a tenant shall not

O.P.(RC) Nos.199 of 2018 & 3 of 2019

dispute title of his landlord at the time of induction. But, the provision does not preclude a tenant from disputing the derivative title of a third party, who claims title on the basis of transfer from the inducting landlord. Our view is fortified by a pronouncement by the Apex Court in Subhash Chandra v. Mohammad Sharif [1990 KHC 707 : (1990) 1 SCC 252]. We shall quote the relevant observations:

"A tenant already in possession can challenge the plaintiffs' claim of derivative title showing that the real owner is somebody else, but this is subject to the rule enunciated by Section 116 of the Evidence Act. The section does not permit the tenant, during the continuance of the tenancy, to deny that his landlord had at the beginning of the tenancy a title to the property. The rule is not confined in its application to cases where the original landlord brings an action for eviction. A transferee from such a landlord also can claim the benefit, but that will be limited to the question of title of the original landlord at the time when the tenant was let in. So far claim of having derived a good title from the original landlord is concerned, the same does not come under the protection of the doctrine of estoppel, and is vulnerable to a challenge. The tenant is entitled to show that the plaintiff has not as a matter of fact secured a transfer from the original landlord or that

O.P.(RC) Nos.199 of 2018 & 3 of 2019

the alleged transfer is ineffective for some other valid reason, which renders the transfer to be non - existent in the eye of law........"

18. Viewed in the light of that principle the position is clear.

The petitioners dispute validity of the Ext. A1 Will, under which

only the respondent now claims the right. Therefore we agree with

the contention of the petitioners that they are not bound by the

restriction against denial of landlord's title contained in Section

116 of the Evidence Act.

19. The learned counsel appearing for the respondent

contended that validity of the Will cannot be challenged by the

petitioners, they being total strangers. The principles laid down by

the Apex Court in Bismillah Be (dead) by LRs. v. Majeed Shah

[(2017) 2 SCC 274] will answer that question, wherein it was held-

"Though by virtue of Section 116 of the Evidence Act, 1872, the tenant is estopped from challenging the title of his landlord during continuance of the tenancy, yet the tenant/lessee is entitled to challenge the derivative title of an Assignee/Vendee of the original landlord (Lessor) of the demised property in an action brought by the Assignee/Vendee against the tenant for his eviction from the demised property under the Rent laws. xx xx xx Once the Assignee/Vendee proves his title to the demised property, the original tenancy devolves on the

O.P.(RC) Nos.199 of 2018 & 3 of 2019

Assignee/Vendee and tenant/lessee by operation of law on the same terms and conditions on which it was entered into with the original landlord/lessor and continues till either modified by the parties or is determined by the landlord in accordance with law."

Therefore, the petitioners can certainly dispute the validity of

Ext.A1 Will, to which alone the respondent traces her title to the

petition schedule shop rooms.

20. As per Section 14 of the Act an order of eviction is to be

executed by the Munsiff having original jurisdiction over the area where

the building is situated, as if it were a decree passed by him. Therefore

the provisions for execution of a decree in the Code of Civil Procedure,

1908 are applicable to execution of an order of eviction under the Act.

Under Section 146 of the Code a proceeding may be taken by the

person claiming under the decree-holder except as otherwise

provided by the Code. The Explanation to Rule 16 of Order 21 of

the Code says that a transferee, whom includes a legatee of rights

in the property which is the subject-matter of the suit, may apply

for execution of the decree without a separate assignment of the

decree as required by the rule. Therefore, if the respondent

proves that Ext. A1, Will is genuine and valid, she steps into the

O.P.(RC) Nos.199 of 2018 & 3 of 2019

shoes of the decree-holder and becomes the holder of the decree.

Then she has every right to execute the orders of eviction.

21. Having the respondent propounded Ext.A1 Will to claim

the right under Sri.Puthenpurayil Rajan, it is her burden to prove

not only its due execution, but also that it is not vitiated by any

suspicious circumstance. Reference may be made in this regard to

the decision of the Apex Court in H.Venkatachala Iyengar v.

B.N.Thimmajamma and others [AIR 1959 SC 443]. It was

observed that in the light of the provisions of Section 63(c) of the

Indian Succession Act, 1923 and Section 68 of the Evidence Act

the test shall be as to whether the testator signed the Will and

whether he understood the nature and effect of the dispositions in

the Will. The Court held as under:

"18. ...Thus the question as to whether the Will set up by the propounder is proved to be the last Will of the testator has to be decided in the light of these provisions. Has the testator signed the Will? Did he understand the nature and effect of the dispositions in the Will? Did he put his signature to the Will knowing what it contained? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of Wills. It would

O.P.(RC) Nos.199 of 2018 & 3 of 2019

prima facie be true to say that the Will has to be proved like any other document except as to the special requirements of attestation prescribed by Section 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of Wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters." By "free and capable testator" is generally meant that the testator at the time when he made the Will had a sound and disposing state of mind and memory. Ordinarily, the burden of proving the due execution of the Will is discharged if the propounder leads evidence to show that the Will bears the signature or mark of the testator and that the Will is duly attested. For proving attestation, the best evidence would naturally be of an attesting witness and indeed the will cannot be used as evidence unless at least one attesting witness, depending on availability, has been called for proving its execution as required by S.68 of the Evidence Act...."

22. Regarding the nature of proof required to prove

execution and attestation of a Will, the Apex Court in Dhanpat v.

Sheo Ram (Deceased) through LRs. and others [(2020) 16

SCC 209] held thus:

"23. ..... at least one of the attesting witnesses is

O.P.(RC) Nos.199 of 2018 & 3 of 2019

required to be examined to prove his attestation and the attestation by another witness and the testator. In the present case, DW3 Maha Singh deposed that Chandu Ram had executed his Will in favour of his four grandsons and he and Azad Singh signed as witnesses. He deposed that the testator also signed it in Tehsil office. He and Azad Singh were also witnesses before the Sub-Registrar. In the cross-examination, he stated that he had come to Tehsil office in connection with other documents for registration. He deposed that Ex.D4 - the Will, was typed in his presence. He denied the question that no Will was executed in his presence. There was no cross - examination about his not being present before the Sub-Registrar. Once the Will has been proved then the contents of such document are part of evidence. Thus, the requirement of Section 63 of the Act and Section 68 of the Evidence Act stands satisfied. The witness is not supposed to repeat in a parrot like manner the language of Section 68 of the Evidence Act. It is a question of fact in each case as to whether the witness was present at the time of execution of the Will and whether the testator and the attesting witnesses have signed in his presence. The statement of the attesting witness proves the due execution of the Will apart from the evidence of the scribe and the official from the Sub-Registrar's office."

O.P.(RC) Nos.199 of 2018 & 3 of 2019

23. In this case, Ext.A1 Will is an unregistered one. Since it

is not mandatory to register a Will, proof of its execution and

attestation does not have any difference, whether or not it is

registered. Therefore the facts of this case are similar, in material

particulars, with the facts of Dhanpat (supra).

24. PW1 is one of the attesting witnesses. His deposition is

very cryptic. He is an Advocate by profession. He deposed that

Ext.A1 Will was written by Sri.Rajan and when he signed it, he as

well as the second witness Sinoj were there. His further version is

that he as well as Sri.Sinoj had signed Ext.A1. The rest is evident

from Ext.A1; Sri.Rajan signed it as the testator, PW1 and Sri.Sinoj

signed it as witnesses. Only question put to PW1 in the cross-

examination was that Ext.P1 was not executed or signed by

Sri.Rajan, which is duly denied by him. When the assertions of

PW1 with respect to signing of Ext.A1 by Sri.Rajan in the presence

of himself and Sri.Sinoj as also, both of them had signed it as

witnesses is not challenged in the cross- examination, there is

absolutely no reason to disbelieve him. It follows that the

requirements of Section 63(c) of the Succession Act and Section

68 of the Evidence Act are sufficiently satisfied. Therefore we hold

O.P.(RC) Nos.199 of 2018 & 3 of 2019

that finding of the Revisional Authority that Ext.A1 was duly

proved has no infirmity and is liable to be affirmed.

25. Main circumstance pointed out as suspicious is that the

respondent did not come forward to pursue the execution petitions

filed by Sri.Puthanpurayil Rajan. Those execution petitions were

dismissed as withdrawn and after the lapse of a few months, the

respondent filed fresh execution petitions. The learned counsel

appearing for the petitioners would submit, had Ext.A1 been really

executed by Sri.Puthanpurayil Rajan, there would not have been

any difficulty for the respondent to get impleaded in the execution

petitions filed by him. It is also alleged that only because Ext.A1 is

a subsequently created one, such a delay had occurred. On the

death of Sri.Puthanpurayil Rajan what advice was received by the

counsel appearing for him in the Execution Petitions is not known.

Unless the respondent approached the counsel, there would have

been an opportunity to continue with the pending execution

petitions. In the absence of any evidence with respect to those

aspects, the said circumstance cannot be a reason to suspect

genuineness of Ext.A1.

O.P.(RC) Nos.199 of 2018 & 3 of 2019

26. Regarding the testamentary capacity of

Sri.Puthanpurayil Rajan, there need not be any doubt. He died on

13.12.2011 whereas, Ext.A1 was executed on 07.09.2003. During

all the intervening period, he had been active, as could be

gathered from the fact that he had been prosecuting the present

litigations. Whether he disinherited any near relatives in

preference to the respondent is not asserted or attempted to be

proved by the petitioners. It is beyond dispute that the respondent

is a near relative of the wife of the testator, who predeceased him.

It has also come in evidence that the testator obtained the

petition schedule premises by inheritance from his wife and both

of them died issueless. In the said circumstances, the legacy in

favour of the respondent vide Ext.A1 Will cannot be said to be

quite unnatural. Accordingly, we hold that the respondent

successfully dispelled the suspicious circumstances pointed out by

the petitioners and none of such circumstances is sufficient to

vitiate Ext.A1. Hence there is nothing preventing the respondent

to rely on Ext.A1 to lay her claim for pursuing the execution of

orders of eviction. In view of that matter, findings rendered by the

Revisional Authority that the Execution Petition Nos.307 and 308

O.P.(RC) Nos.199 of 2018 & 3 of 2019

of 2012 are maintainable does not suffer from any illegality or

perversity. We find that these original petitions are devoid of any

merit and liable to be dismissed.

The original petitions are accordingly dismissed and the

common order of the Revisional Authority(Additional District

Judge-III), Thalassery in Rent Control Revision Petition Nos.1 and

2 of 2016 is confirmed.

Sd/-

ANIL K.NARENDRAN JUDGE

Sd/-

P.G. AJITHKUMAR JUDGE dkr

O.P.(RC) Nos.199 of 2018 & 3 of 2019

APPENDIX OF O.P.(RC) NO.199 OF 2018

PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE COMMON ORDER OF THE PRINCIPAL MUNSIFF COURT, KANNUR IN EP 307/2012 IN RCP 63/1996 DATED 19.10.2015.

EXHIBIT P2 TRUE COPY OF THE COMMON ORDER OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT COURT-III) THALSSERY, IN RCRP 1/ 2016 & RCRP 2/2016.

O.P.(RC) Nos.199 of 2018 & 3 of 2019

APPENDIX OF O.P.(RC) NO.3 OF 2019

PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE COMMON ORDER OF THE PRINCIPAL MUNSIFF COURT, KANNUR IN EP 308/2013 IN RCP 67/1996 DATED 19/10/2015.

EXHIBIT P2 TRUE COPY OF THE COMMON ORDER OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT COURT-III) THALASSERY IN RCRP 1/2016 AND 2/2016.