Kerala High Court
Santha Jayachandran And Others vs Dharmapalan on 7 October, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
FRIDAY, THE 7TH DAY OF OCTOBER 2022 / 15TH ASWINA, 1944
RSA NO. 841 OF 2010
AGAINST THE JUDGMENT IN AS 217/2007 OF II ADDITIONAL SUB COURT,THRISSUR
OS 1000/1995 OF III ADDITIONAL MUNSIFF COURT ,THRISSUR
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APPELLANTS/RESPONDENTS/PLAINTIFFS:
1 SANTHA JAYACHANDRAN,
AGED 64 YEARS, W/O.JAYACHANDRAN, PIPE LINE ROAD, CHEMBUKKAVU,
THRISSUR.
2 DR.LALITHA SIVAN AGED 60 YEARS
W/O.DR.SIVAN, THALAPPA, KANNUR.
3 GIRIJA PRABHAKARAN,
AGED 56 YEARS, W/O.P.K.PRABHAKARAN, "PRABHA COTTAGE",
THALAPPA, KANNUR.
4 KANCHANA, AGED 52 YEARS,
W/O.T.V.RAJAN, THINDIYIL HOUSE, AYYANTHOLE CHUNGAM, THRISSUR.
BY ADVS.
SRI.DINESH R.SHENOY
SMT.N.ANJALI
SRI.MAHESH MENON
RESPONDENT/APPELLANT/DEFENDANT:
DHARMAPALAN, AGED 62 YEARS,
S/O.VAIKATTIL RAMAKRISHNAN, VELIYANNUR DESON, THRISSUR-680
001.
BY ADVS.
SMT.GEETHA P.MENON
SRI.P.B.KRISHNAN
SRI.P.M.NEELAKANDAN
SRI.R.SURAJ KUMAR
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON
07.10.2022, ALONG WITH RSA.842/2010, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
FRIDAY, THE 7TH DAY OF OCTOBER 2022 / 15TH ASWINA, 1944
RSA NO. 842 OF 2010
AGAINST THE JUDGMENT IN AS 218/2007 OF II ADDITIONAL SUB COURT,THRISSUR
OS 468/1996 OF III ADDITIONAL MUNSIFF COURT,THRISSUR
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APPELLANTS/RESPONDENTS 3 TO 6/DEFENDANTS 3 TO 6:
1 SANTHA JAYACHANDRAN,
AGED 68 YEARS, W/O.JAYACHANDRAN, PIPE LINE ROAD, CHEMBUKKAVU,
THRISSUR.
2 DR.LALITHA SIVAN, AGED 64 YEARS
W/O.DR.SIVAN, THALAPPA, KANNUR.
3 GIRIJA PRABHAKARAN,
AGED 60 YEARS, W/O.P.K.PRABHAKARAN, "PRABHA COTTAGE",
THALAPPA, KANNUR.
4 KANCHANA, AGED 56 YEARS,
W/O.T.V.RAJAN, THINDIYIL HOUSE, AYYANTHOLE CHUNGAM, THRISSUR.
(2ND DEFENDANT EXPIRED PENDING SUIT. HIS HEIRS, ARE ALL ON
RECORD).
BY ADVS.
SRI.DINESH R.SHENOY
SMT.N.ANJALI
SRI.MAHESH MENON
RESPONDENTS/APPELLANT & 1ST RESPONDENT/PLAINTIFF & 1ST DEFENDANT:
1 DHARMAPALAN, AGED 66 YEARS,
S/O.VAIKATTIL RAMAKRISHNAN, VELIYANNUR DESOM,
THRISSUR-680 001.
RSA NO. 842 OF 2010 -2-
2 T.N.JAYACHANDRAN,
S/O.THAIVALATH T.K.NARAYANAN, PIPELINE ROAD, MYLIPADAM,
CHEMBUKKAVU, THRISSUR-682 001.
BY ADVS.
SRI.P.B.KRISHNAN
SRI.R.SURAJ KUMAR
SMT.GEETHA P.MENON
SRI.P.M.NEELAKANDAN
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON
07.10.2022, ALONG WITH RSA.841/2010, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
SATHISH NINAN, J.
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RSA Nos.841 & 842 of 2010
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Dated this the 7th day of October, 2022
J U D G M E N T
RSA 841/2010 arises from OS 1000/1995. It is a suit
filed by the appellants as plaintiffs against their
brother Dharmapalan who is the respondent in the appeal.
The suit is for a prohibitory injunction against
interfering with the possession of the parties based on
Ext.A1 Partition Deed. RSA 842/2010 arises from OS
468/1996 which is a suit filed by Dharmapalan against
the appellants, for a prohibitory injunction from
interfering with his possession. The trial court decreed
OS 1000/1995 and dismissed OS 468/1996. On appeal, the
first appellate court reversed the decrees. It is
challenging the same, that these appeals have been
preferred.
2. The property involved the suits belonged to
Karthiayani, the mother of the parties. Karthiayani died
on 22.02.1985. On 06.12.1995, her legal heirs viz. her
RSA Nos.841 & 842 of 2010
husband and children executed Ext.A1 Partition Deed. In
Ext.A1 partition, the property was divided between the
children. The father did not take any share. In OS
1000/1995, the appellants seek a prohibitory injunction
against their brother-Dharmapalan, not to interfere with
their possession based on Ext.A1 partition.
3. The brother-Dharmapalan filed a written
statement contending that, the mother had executed a
Will and that Ext.A1 Partition Deed was entered into
being ignorant about the Will.
4. PW2, is Karthiayani's sister's husband. It was
claimed that the Will executed by Karthiayani was
entrusted in a sealed cover by her with PW2, with a
direction not to open the cover during the life time of
Karthiayani's husband. In reverence to the direction,
PW2 has kept the Will in his custody without the same
being published.
5. The trial court relied on Ext.A1 partition and
held that, since the better title claimed under the Will
RSA Nos.841 & 842 of 2010
was not produced or proved, the partition under Ext.A1
stands. The view of the trial court was confirmed in
appeal. However, this Court as per the common judgment
in SA No.588/2002 and SA No.589/2002 held that, if
deceased Karthiayani had executed a Will the same became
operative on her death and that the mere non-publishing
of the same does not postpone vesting of the legacy.
This Court disposed of the appeals with the following
directions :-
"(i) The trial court shall have the sealed cover in
question opened in the presence of the authorised counsel
appearing in the case on behalf of the parties.
(ii) If any document inside the cover purports to be a
Will of late Karthiyani, the predecessor-in-interest of the
parties to these appeals, such Will shall be retained in safe
custody of the trial court after giving an opportunity to the
counsel and the parties along with counsel to peruse the same.
If any party makes appropriate application, the trial court shall
also issue certified photostat copy of that document.
RSA Nos.841 & 842 of 2010
(iii) Thereupon the appellant, the defendant in OS
No.1000/1995, who is the plaintiff in OS No.468/1996 will
have the burden on him to prove the said document as a Will, if
it is one. Any other party to the suits, who is desirous of
challenging the Will, shall also to be entitled to adduce such
further evidence as may be necessary. They will also be at
liberty to bring such further pleadings, if necessary.
(iv) The trial court shall then proceed to decide as to
whether the appellant herein has a better title to the suit
properties in its entirety or a portion thereof. If he does not
have any such better title, the decrees that are impugned in
these appeals shall stand revived and will be passed afresh by
the court below. Otherwise, the trial court will pass such
decree on the basis of its findings."
6. Pursuant to the remand, the Will was produced
and marked as Ext.X1. One of the attestors to Ext.X1 was
examined as PW3. Though the trial court upheld the Will,
it was held that the Will would take effect only after
the death of the husband of Karthiayani in view of the
RSA Nos.841 & 842 of 2010
specific stipulations in the Will to the said effect.
Accordingly it was held that Dharmapalan has not proved
a better title against Ext.A1 partition.
7. Challenging the decrees, Dharmapalan preferred
AS No.217/2007 and AS No.218/2007. The first appellate
court concurred with the finding on the Will, and held
that, on the death of the testator the succession has
opened and the Will has taken effect. Accordingly the
decrees were reversed.
8. Heard Sri.Dinesh R. Shenoy, the learned counsel
for the appellants and Sri.P.B.Krishnan, the learned
counsel for the respondents on the following substantial
questions of law :-
(i) Did the Courts fail to consider the suspicious
circumstances pointed out by the appellants with regard to
the genuineness of Ext.X1 Will ?
(ii) Has there not being a failure to exercise
jurisdiction by the first appellant Court in not having
considered the memorandum of cross objections filed
RSA Nos.841 & 842 of 2010
challenging the findings of the trial court regarding the
genuineness of Ext.X1 Will ?
9. The fate of the suits depend upon the finding on
the genuineness of Ext.X1 Will. As against the findings
of the trial court with regard to the genuineness of
Ext.X1 Will, the appellants herein had filed a
memorandum of cross objections pointing out various
suspicious circumstances with regard to the genuineness
of the Will.
10. The learned counsel for the appellants would
argue that, Ext.X1 Will is shrouded by various
suspicious circumstances. Out of the two witnesses shown
in Ext.X1 Will, as regards one witness, except his name
no other details including his address, are provided in
the Will. The other attesting witness is PW3. Though he
deposed that the other witness is known to him, he
expressed ignorance about his address and whereabouts.
According to the appellants, the said witness is a
fictitious person. Even though in the witness list
RSA Nos.841 & 842 of 2010
submitted by Dharmapalan, the name of the said witness
was mentioned, it did not contain any address, nor was
he examined. PW3 is an employee of Dharmapalan and
earlier of his father. Even going by PW3's version he is
a chance witness to Ext.X1, he having stepped into the
house of late Karthiayani without being invited. On
seeing him, Karthiayani asked him to write down the
Will. It is the case of PW3 that other witness stepped
in at the house accidentally when the Will was being
written. Though PW3 is an autorickshaw driver, the
language in Ext.X1 Will is that of a trained person.
Ext.X1 Will is of the year 1985 and is written in a
stamp paper of the year 1981. These suspicious
circumstances, though were brought to the notice of the
Courts, were not considered, it is contended.
11. On verification of the lower appellate court
records, it is seen that the appellants had filed a
memorandum of cross objections on 01.04.2006.
Incidentally it is to be noticed that the first appeal
RSA Nos.841 & 842 of 2010
was originally filed before the District Court, Thrissur
in the year 2006, which was subsequently transferred to
the Subordinate Judge's Court and was re-numbered in
2007. Order XLI Rule 22 enables respondent to file cross
objections challenging the findings rendered against him
by the trial court, though not mandatory. However, the
first appellate court has failed to consider the same.
It is not even adverted to. There has been a failure to
exercise jurisdiction.
12. Consideration of suspicious circumstances being
a matter involving re-appreciation of the facts and
evidence, it is only deemed appropriate that the first
appellate court considers the entire issue including the
memorandum of cross objections.
13. Before this Court, the appellants have, along
with IA 1849/2010 filed under Order XLI Rule 27 of the
Code of Civil Procedure produced a document as Will
No.338/1955 claimed to have been executed by their
mother Karthiayani. The same is produced essentially to
RSA Nos.841 & 842 of 2010
dispute the signature of the testator in Ext.X1 Will.
Here it is to be noticed that, before the trial Court
though the appellants had sought expert opinion with
regard to the signature of the testator on Ext.X1 Will,
the report did not contain a finding either way. Since
the matter is being remanded back, it shall be open for
the appellants to produce the same before the first
appellate court if he so chooses. The first appellate
court may consider the need for admission of additional
evidence and may pass appropriate orders.
Resultantly the appeals are allowed. The decree and
judgment in AS Nos.217/2007 and 218/2007 are set aside.
The first appellate court shall reconsider the appeal
and dispose of the same anew. Parties shall appear
before the court below on 15.11.2022.
Sd/-
SATHISH NINAN
JUDGE
kns/-
//True Copy//
P.S. to Judge
