Kerala High Court
Mohanan P.M vs Ramanadhan on 11 June, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
TUESDAY, THE 11TH DAY OF JUNE 2024 / 21ST JYAISHTA, 1946
RSA NO. 700 OF 2023
AGAINST THE JUDGMENT DATED 22.07.2023 IN AS NO.237 OF 2015 OF
DISTRICT COURT -IV, THRISSUR ARISING OUT OF THE JUDGMENT DATED
20.08.2015 IN OS NO.284 OF 2013 OF SUB COURT, CHAVAKKAD.
APPELLANT(S)/APPELLANT/PLAINTIFF:
MOHANAN P.M
AGED 64 YEARS
S/O LATE MADHAVAN, POOVATH HOUSE POOKODE VILLAGE,
THAMARAYUR DESOM CHAVAKKAD TALUK, THAMARAYUR. P.O
THRISSUR DISTRICT-, PIN - 680505
BY ADVS.
MOHAMMED SADIQUE.T.A
K.P.MAJEED
K.M.MOHAMMED YUSUFF
SHANKAR V.
P.A.ABDUL MAJEED
RESPONDENT(S)/RESPONDENTS/DEFENDANTS:
1 RAMANADHAN
S/O LATE MADHAVAN, POOVATH HOUSE, POOVATH HOUSE,
POOKODE VILLAGE, THAMARAYUR DESOM, CHAVAKKAD TALUK,
THAMARAYUR P.O, THRISSUR DISTRICT, PIN - 680505
2 PUSHPAKARAN
S/O LATE MADHAVAN, POOVATH HOUSE POOKODE VILLAGE,
THAMARAYUR DESOM CHAVAKKAD TALUK, THAMARAYUR P.O
THRISSUR DISTRICT, PIN - 680505
3 CHANDRIKA
D/O LATE MADHAVAN, W/O POOKKETHIL MOHANAN,
PERAKOM VILLAGE, VAZHAPPILLY DESOM CHAVAKKAD TALUK,
PERAKAM P.O THRISSUR, PIN - 680506
4 DEVAYANI
D/O LATE MADHAVAN, W/O MELETHIL RAVEENDRAN,
MANJAKKAD P.O, SHORNUR VILLAGE,
NEDUGOTTUR DESOM,
PALAKKAD DISTRICT, PIN - 679308
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R.S.A.No.700 of 2023
5 YESODHA
D/O LATE POOVATH MADHAVAN,
W/O VADASSERY SATHYAN, VAKA P.O,
ELAVALLY VILLAGE MATTOM DESOM,
CHAVAKKAD TALUK, THRISSUR, PIN - 680602
6 NALINI
D/O LATE POOVATH MADHAVAN, POOKODE VILLAGE,
THAMARAYUR DESOM, CHAVAKKAD TALUK THAMARAYUR PO,
THRISSUR DISTRICT, PIN - 680505
7 RAJINI
W/O BALAN, POOVATH HOUSE, CHERUVATHANI DESOM
ANJOOR VILLAGE, THALAPPILLY TALUK ANJOOR PO,
THRISSUR, PIN - 680523
8 PRAMOD
S/O BALAN,POOVATH HOUSE, CHERUVATHANI DESOM,
ANJOOR VILLAGE, THALAPPILLY TALUK, ANJOOR PO,
THRISSUR, PIN - 680523
9 PREMALATHA
D/O BALAN, POOVATH HOUSE ANJOOR VILLAGE,
THALAPPILLY TALUK, ANJOOR PO,
THRISSUR, PIN - 680523
BY ADVS.
M P ASHOK KUMAR, ASIF N FOR R1.
K.M.FATHIMA & SACHIN RAMESH FOR R2 TO R5, R7 TO
R9
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON
11.06.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
3
R.S.A.No.700 of 2023
C.S.SUDHA, J.
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R.S.A.No.700 of 2023
---------------------------------------------
Dated this the 11th day of June 2024
JUDGMENT
This second appeal under Section 100 read with Order
XLII Rule 1 CPC filed by the plaintiff/appellant is against the
judgment and decree dated 22/07/2023 in A.S.No.237/2015 on
the file of the District Court, Thrissur, which appeal in turn is
against the judgment and decree dated 20/08/2015 in
O.S.No.284/2013 on the file of the Subordinate Judge's Court,
Chavakkad. The parties and the documents will be referred to as
described in O.S.No.284/2013.
2. The plaintiff and the defendants are the children of
Poovath Madhavan and Kalyani, both of whom died intestate.
The parties are Hindus governed by the Hindu Succession Act,
1956. The plaintiff and defendants are in joint possession and
enjoyment of the property. The plaintiff does not wish to continue
with the joint possession of the property and hence the suit for
partition seeking 1/8 share in the property.
3. The first defendant filed written statement with a
counterclaim contending that late Madhavan owned 1.10 Acres of
property. After the death of Madhavan, the property devolved on
the plaintiff and defendants. The plaintiff has only shown an
extent of 40 cents as plaint schedule property. The remaining 70
cents of Madhavan has not been scheduled. The plaintiff and
defendants are entitled to 1/8 share in the property and hence a
counterclaim to the said effect was filed by the first defendant.
4. The second defendant filed written statement
contending that neither the plaintiff nor the first defendant is
entitled to any share in the property as late Madhavan had
executed Ext.B1 Will dated 11/01/1989 as per which the entire
plaint schedule property has been bequeathed in his favour. On
the death of Madhavan, the Will has come into force and
therefore neither the plaintiff nor the first defendant is entitled to
the reliefs prayed for.
5. The plaintiff filed replication denying the contention
of the second defendant regarding execution of Ext.B1 Will by
the father. Madhavan had not executed any Will out of his free
will and volition. Madhavan during his life time had given an
extent of 70 cents of property to the second defendant and his
wife. Therefore there was no necessity for Madhavan to have
executed a Will bequeathing the remaining property also in
favour of the second defendant. Ext.B1 Will relied on by the
second defendant was obtained by playing fraud and deceit on
late Madhavan.
6. Necessary issues were framed by the trial court. The
parties went to trial on the basis of the aforesaid pleadings. PW1
was examined and Ext. A1 was marked on the side of the
plaintiff. DW1 to DW3 were examined and Exts.B1 to B8 were
marked on the side of the defendants. The trial Court on an
appreciation of the oral and documentary evidence and after
hearing both sides, found execution of Ext.B1 Will to have been
proved and hence dismissed the suit. The counterclaim of the
first defendant was also dismissed as he had not taken any steps
to prove his claim. Aggrieved, the plaintiff filed
A.S.No.237/2015, which has also been dismissed confirming the
judgment and decree of the trial court. Hence, this second appeal
by the plaintiff.
7. Heard the learned counsel for the plaintiff/appellant.
8. The learned counsel for the plaintiff/appellant
submitted that both the courts grossly erred in appreciating the
evidence on record and wrongly dismissing the suit. Late
Madhavan, the testator had eight children including the plaintiff.
If the second defendant is to be believed, Madhavan divested all
his children of any property and bequeathed his entire property to
the second defendant. This itself is not a normal human conduct
and hence a suspicious circumstance surrounding the execution of
Ext.B1 Will. The second defendant, the propounder of the Will, is
bound to clear the suspicious circumstance surrounding the
execution of the same. The second defendant has not discharged
his burden and hence the courts were went wrong in dismissing
the suit and therefore the judgment and decree of the first
appellate court is liable to be reversed, goes the argument.
9. It is true that late Madhavan, the testator had eight
children including the plaintiff. Madhavan is seen to have
bequeathed his entire property to the second defendant, one of his
sons. The second defendant has an explanation as to why the
father had bequeathed the entire property to him. According to
the second defendant, he had all along been looking after the
affairs of the entire family. It was he who had conducted the
marriage of his three sisters and all the expenses relating to the
marriage was borne by him. As the financial liabilities of the
entire family had been taken by him alone, his father bequeathed
the entire property to him. This is a plausible explanation given
by the second defendant.
10. Moreover a Will is executed by the testator when he
does not wish or want the property to devolve as per the normal
rules of succession or when he wants a deviation from the normal
rules of succession. As rightly held by the first appellate court, it
is not necessary for the testator to give any reasons in the Will as
to why he is bequeathing the entire property to one son to the
exclusion of all his other children. DW2 is the attesting witness
examined to prove the execution of Ext.B1 Will. The other
attesting witness in Ext.B1 is no more and hence his daughter
who is acquainted with his signature was examined as DW2.
Both the courts on an appreciation of the oral evidence of the
witnesses found no reasons to disbelieve them. Therefore, it was
held that Ext.B1 stands established and in such circumstances, the
plaintiff was non suited. There is no infirmity or perversity in the
findings of the trial court or the first appellate court calling for an
interference by this Court. As no substantial questions of law
arise, the appeal is liable to be dismissed in limine and hence I do
so.
Interlocutory applications, if any pending, shall stand
closed.
Sd/-
C.S.SUDHA
JUDGE
Jms
