Kerala High Court
Thankama Sreedharan vs Padmini on 12 November, 2024
Author: Sathish Ninan
Bench: Sathish Ninan
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MR.JUSTICE P. V. BALAKRISHNAN
TUESDAY, THE 12TH DAY OF NOVEMBER 2024 / 21ST KARTHIKA, 1946
RFA NO. 153 OF 2020
AGAINST THE JUDGMENT DATED 07.11.2019 IN OS NO.152 OF 2014 OF
II ADDITIONAL SUB COURT,ERNAKULAM
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APPELLANT/PLAINTIFF:
THANKAMA SREEDHARAN,
DAUGHTER OF LATE NARAYANAN AND LATE LAKSHMI AND WIFE OF
SREEDHARAN, AGED 79 YEARS, RESIDING AT THEKKETHITTAYIL
HOUSE, P.K.S.ROAD, MARADU DESOM, MARADU P.O.,
PIN - 682 304, MARADU VILLAGE, KANAYANNUR TALUK,
ERNAKULAM DISTRICT.
BY ADVS.
SRI.A.BALAGOPALAN
SMT.P.SEENA
SMT.GOURI BALAGOPAL
SRI.M.S.IMTHIYAZ AHAMMED
SRI.M.N.MANMADAN
SRI.A.RAJAGOPALAN
RESPONDENTS/DEFENDANTS & SECOND PLAINTIFF:
1 PADMINI,
DAUGHTER OF LATE KRISHNAN AND LATE KAMALAKSHY AND WIFE
OF M.N.SURENDRAN MASTER, AGED ABOUT 72 YEARS, RESIDING
AT MATHAMVELI HOUSE, MUTHIRAPPADAM, COMPANYPADI, ALUVA,
ERNAKULAM DISTRICT, PIN- 683 106.
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RFA NO. 153 OF 2020 -2-
2 SULOCHANA SUDARSANAN,
WIFE OF LATE SUDARSANAN, AGED ABOUT 56 YEARS, RESIDING
AT MALIKAKKAL (MALIKKAL) HOUSE, AYYANKALI ROAD,
MEKKARA, THEKKUMBHAGOM DESOM, THEKKUMBHAGAM VILLAGE,
KANAYANNUR TALUK, ERNAKULAM DISTRICT, PIN - 683 106.
3 BINIL SUDARSANAN,
SON OF LATE SUDARSANAN, AGED ABOUT 27 YEARS, RESIDING
AT MALIAKAKKAL (MALIKKAL) HOUSE, AYYANKALI ROAD,
MEKKARA, THEKKUMBHAGOM DESOM, THEKKUMBHAGAM VILLAGE,
KANAYANNUR TALUK, ERNAKULAM DISTRICT, PIN - 683 106.
4 INDIRA SUNDARAN,
DAUGTHER OF LATE NARAYANAN AND LATE LAKSHMI AND WIFE OF
A.K.SUNDARAN, AGED 74 YEARS, RESIDING AT PALACHUVATTIL
HOUSE, ILLIKKAPADY, EROOR P.O., PIN - 682 306, NADAMA
VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT,
PIN - 683 106.
BY ADV K.P.SREEKUMAR
THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON
12.11.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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SATHISH NINAN &
P.V.BALAKRISHNAN, JJ.
= = = = = = = = = = = = = = = = = =
R.F.A. No.153 of 2020
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Dated this the 12th day of November, 2024
J U D G M E N T
Sathish Ninan, J.
Challenging the dismissal of a suit for partition,
the first plaintiff is in appeal.
2. The property sought to be partitioned belonged
to late Madhavan. He died on 09.06.2014. He was a
bachelor. He had two sisters viz. Lakshmi and Kamalakshi
who are no more. The plaintiffs are the children of
Lakshmi. The first defendant is the daughter of
Kamalakshi. Second defendant is the wife and 3 rd
defendant is the son of Sudharsanan, the late son of
Kamalakshi.
3. It is the claim that no clause-I heirs being
available, the plaintiffs and the defendants have
inherited the property of Madhavan. Partition is sought
accordingly.
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4. The defendants denied the claim for partition,
on the strength of Ext.B2 Will dated 20.03.2012 alleged
to have been executed by Madhavan, bequeathing the
properties to them.
5. The plaintiffs amended the plaint and
incorporated averments challenging the execution and
genuineness of Ext.B2 Will.
6. The trial court upheld Ext.B2 Will and dismissed
the suit.
7. We have heard learned counsel on either side.
8. The points that arise for determination are:-
(i) Is the finding of the trial court with regard to the
execution and genuineness of Ext.B2 Will, founded on the
evidence in the case?
(ii) Are there any suspicious circumstances surrounding the
execution of Ext.B2 Will?
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9. To prove the due execution and attestation of
Ext.B2 Will, the defendants examined DW2, an attestor to
the Will. Madhavan, the testator, was residing along
with defendants 2 and 3. DW2 is their neighbour. DW2
deposed about the due execution and attestation of the
Will satisfying the requirements under Section 63(c) of
the Indian Succession Act and Section 68 of the Indian
Evidence Act. No circumstance has been brought out to
discredit DW2. The mere fact that he is a neighbour, is
not a ground to disbelieve him. In fact, choosing a
stranger as a witness would be suspicious whereas
choosing a neighbour would lend credence to the
genuineness of the document.
10. Ext.B2 is a registered Will. In the light of
Section 68 of the Indian Evidence Act which specifically
provides for proof of a Will in terms thereof, the mere
registration of the Will cannot discharge the burden of
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proof. The due execution of the Will has to be proved
otherwise and as required under the Section. So also,
the suspicious circumstances, if any, surrounding the
execution of the Will are to be dispelled. Anyhow,
registration is a solemn Act and the factum of
registration of a Will carries with it the presumption
to some extent [See Mathu v. Cherchi (1990 (1) KLJ 265); K.M Varghese
and Ors v. K.M Oommen and Ors (1994 (2) KLT 620); Raveendran v. Gopi
(2015 (3) KLT 740); Johnson and Ors v. Annie and Anr (2019 (4) KHC 417 )].
DW3 is the Junior Superintendent of the Sub Registry
Office. He was functioning as the Sub Registrar at the
relevant time. He has deposed about the due registration
of the Will. Much was argued by the learned counsel for
the appellant, alleging collusion on the part of DW3
with the defendants. It was contended that DW3 had not
even bothered to ensure the identity of the executant.
The photograph of Madhavan, seen affixed on Ext.B2, is
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one which must have been taken years back and has no
resemblance to his appearance at the time of execution
of Ext.B2, it is argued. However, the said arguments
have no force in the light of the categoric admission of
PW1 that they have no case of impersonation in the
execution of Ext.B2 Will. Even otherwise, no reason is
suggested as to why DW3 should collude with the
defendants or aid them. Though much was argued that DW3
is only the Junior Superintendent in the Sub Registry
Office and that the document was registered taking
advantage of the absence of the Sub Registrar, it has
come out that DW3 was holding the office of the Sub
Registrar for a period of almost one year. Nothing could
be brought out to discredit the evidence of DW3 or to
find that the registration of Ext.B2 Will was not
proper.
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11. The learned counsel for the appellants relied
on Ext.A3, the report of the handwriting expert, to
contend that the signature in Ext.B2 Will is not that of
Madhavan. Ext.A2 opinion was prepared on comparing the
signatures of Madhavan as seen in Ext.B2, with Ext.B1 an
earlier Will dated 27.02.1992, claimed to have been
executed by Madhavan, and Ext.A1 Partition Deed between
Madhavan and his brother Narayanan. The said partition
deed is of the year 1991. The expert opined that "most
probably" the signatures in Ext.B2 are not that of
Madhavan. It is to be noticed that Exts.A1 and B1 are of
the year 1991 and 1992 respectively, whereas Ext.B2 Will
is of the year 2012. Due to the long lapse of time, even
in the normal course there would occur variations in the
signatures. Expert opinion ought to have been obtained
with reference to the signatures in contemporaneous
documents. At any rate, the opinion of a handwriting
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expert is not conclusive.
12. At the same time, the report of an expert was
obtained through Court with regard to the fingerprint of
Madhavan on Ext.B2. Ext.C1 is the report of the expert.
The expert has affirmed that the fingerprint is that of
Madhavan. Study of fingerprints is stated to be an exact
science and is a very valuable piece of evidence. [Jaspal
Singh v. State of Punjab (AIR 1979 SC 1708), Murari Lal v. State of Madhya
Pradesh (AIR 1980 SC 531), Pathumma v. Veersha (1988(1) KLT 798), Kannan
v. Nanu (1989(2) KLT 288)]. Anyhow, in the light of the
evidence of PW1 that she does not have a case of
impersonation, the above may not have much relevance. Be
that as it may, the evidence as discussed above proves
the due execution and attestation of Ext.B2 Will.
13. Ext.B2 Will is next attacked on the allegation
that, at the time of the alleged execution of Ext.B2
Will, Madhavan did not have a sound disposing state of
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mind. According to the plaintiffs, Madhavan had been
suffering from Alzheimer's disease and was very weak
since 18 to 20 years prior to the institution of the
suit. PW1 deposed thus,
"tIkv sIm-Sp-¡p-ó-Xn-\v 18þ20 sImñw ap-¼v ti-jn Cñm-Xmbn."
PW1 would further depose that Madhavan was not treated
for the illness. (A½mh-s\ ssh-Zy ]cn-tim-[-\ \-S-¯n-bn-cptóm ?
H-ópw sN-¿m-dnñm-bn-cpóp. bm-sXm-cp-h-I Nn-In-Õbpw sN-bv-Xnñ Fóm-
tWm ? Nn-In-Õ Hópw \-S-¯n-bnñ. ) PW2 is the daughter of
Madhavan's brother Narayanan. She would on the other
hand depose that Madhavan was suffering from Alzheimer's
disease and that he was treated at the Lisie Hospital,
and that it was she who was attending him. If Madhavan
was under treatment as claimed, medical records with
regard to the treatment would be available. In spite of
the above, no documents, including medical records with
regard to the illness and treatment have been produced.
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If Madhavan had been suffering from Alzheimer's and
other illnesses and was under treatment for a period of
almost twenty years, definitely documents would have
been available to prove the same. The doctor who was
treating him could have been examined to prove the
illness if any, and the extent to which it had affected
Madhavan. The non-production of such evidence, both oral
and documentary, should necessarily lead to the drawing
of an inference that the contention is baseless.
14. Ext.B2 Will is dated 20.03.2012, and Madhavan
died on 09.06.2014, i.e., after more than two years.
Madhavan was in the military service. PW1 admitted that
Madhavan had been going to the Bank (SBT) every year for
mustering to draw pension and that he had been to the
Bank for the same even on 23.11.2013, i.e. more than one
year after the execution of Ext.B2. But for the bald
allegation with regard to the ill-health of Madhavan,
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there is total lack of evidence to prove the same. In
fact, the evidence on record proves otherwise.
15. The learned counsel for the appellants would
contend that, as per Ext.B2 Will, Madhavan has totally
excluded his one sister and children, and he has
preferred the other sister and her children. There was
no reason to exclude one sister and her branch
altogether. Such exclusion is a suspicious circumstance,
it is argued. We find that the argument is not of any
substance. If Ext.B2 Will was not executed, then the
property would have devolved by intestate succession on
the plaintiffs and the defendants which are the branches
of the two sisters of Madhavan. The very reason behind
the execution of the Will would often be to interfere
with the normal Rule of Succession. [ Indu Bala Bose and Ors v.
V. Manindra Chandra Bose and Anr (1982 (1) SCC 20), Guro v. Atma Singh
and Ors (1992 (2) SCC 507), H. Venkatachala Iyengar v. B.N Thimmajamma
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and Ors (AIR 1959 SC 443), Rani Purnima Debi and Anr v. Kumar Khagendra
Narayan Deb and Anr (AIR 1962 SC 567), Smt Jaswant Kaur v. Smt Amrit Kaur
and Ors (1977 (1) SCC 369), Savithri and Ors v. Karthyayani Amma and Ors
(2007 (11) SCC 621), Ramabai Padmaker Patil (Dead) Through Lrs and Ors v.
Rukmini Vishnu Vekhande and Ors (2003 (8) SCC 537), P.P.K Gopalan
Nambiar v. P.P.K Balkrishnan Nambiar and Ors (AIR 1955 SC 1852),
Pushpavathi and Ors v. Chandrarja Kadamba and Ors (AIR 1972 SC 2492),
Rabindra Nath Mukharjee and Anr v. Panchanan Barerjee (Dead) by Lrs (1995
(4) SCC 459), Daulat Ram and Ors v. Sodha and Ors (2005 (1) SCC 40)] .
Admittedly Madhavan, who was a bachelor, was residing
along with defendants 2 and 3. They were taking care of
him for years together. At paragraph 3 of the written
statement, the defendants had contended that defendants
2 and 3 are the wife and son of late Sudharsanan, who is
his sister's son and that he had earlier executed Ext.B1
Will dated 27.02.1992, constituting the said Sudharsanan
as legatee. The fact that Madhavan was being taken care
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of by the family for so many years, is a reason
sufficient enough to have prompted Madhavan to have
bequeathed the property to them. The contention that the
manner of the bequest is a suspicious circumstance has
no force.
16. The learned counsel for the appellants would
then argue that there is no evidence as to who prepared
Ext.B2 Will. Ext.B2 is computer written. DW2, the
witness to the Will, claim to have executed it at the
residence of Madhavan; at the same time, the defendants
plead ignorance with regard to the execution of the
Will. It is a suspicious circumstance, he submits. We
feel that the said argument has no force. We have
already held that the allegation that Madhavan was
suffering from illness is not correct. There is no
material to find that he was suffering from any illness
or that he was not able to move around on his own. He
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died only two years after the execution of Ext.B2. Even
one and a half year after execution of Ext.B2 he had
been to the Bank for mustering in connection with
drawing of pension. There is no reason to find that he
was not healthy and capable enough to make his own
arrangements for the preparation of the Will. As was
noticed earlier, the witness is the neighbour. On the
totality of the evidence and circumstances, it can only
be held that the non-disclosure of the name of the
person who prepared the Will or that the defendants were
unaware of the execution of the Will is not a ground to
hold against the Will. The evidence on record is
overwhelming to find the genuineness of Ext.B2 Will.
The trial court has analysed the entire evidence on
record in extenso while upholding Ext.B2 Will. No
material exists to overturn the finding. The conclusions
arrived at are proper and are justified under law.
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The appeal fails and is dismissed. No costs.
Sd/-
SATHISH NINAN
JUDGE
Sd/-
P.V.BALAKRISHNAN
JUDGE
kns/-
