Kerala High Court

K.P.Janaki vs Bavani on 5 August, 2025

Author: Sathish Ninan

Bench: Sathish Ninan

                                             2025:KER:58688


          IN THE HIGH COURT OF KERALA AT ERNAKULAM

                          PRESENT

          THE HONOURABLE MR. JUSTICE SATHISH NINAN

                                &

         THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR

  TUESDAY, THE 5TH DAY OF AUGUST 2025 / 14TH SRAVANA, 1947

                    RFA NO. 395 OF 2018

   AGAINST THE JUDGMENT AND DECREE DATED 15.03.2018 IN OS

           NO.932 OF 2013 OF SUB COURT, CHAVAKKAD

APPELLANTS/DEFENDANTS 1 TO 4:

    1    K.P.JANAKI (DIED)
         AGED 65 YEARS
         W/O. LATE ACHUTHAN, KANDIRUTHI HOUSE, PARAYIL
         NORTH, PATTAMBI ROAD, P.O KUNNARNKULAM,
         THIRUVANANTHAPURAM, PIN - 680503
         THE FOLLOWING FACTS ARE RECORDED AS PER ORDER
         DATED 28/06/2024 IN MEMO DATED 04/06/2024 IN RFA
         395/2018:
         FIRST APPELLANT IN RFA 395/2018 EXPIRED.
         APPELLANTS 2 TO 4 IN THE APPEAL WHO ARE ALREADY IN
         THE PARTY ARRAY ARE RECORDED AS THE LEGAL HEIRS OF
         THE DECEASED FIRST APPELLANT.

    2    K.A.PUROMAJA,
         AGED 46 YEARS, D/O.LATE ACHUTHAN, KANDIRUTHI
         HOUSE, PARAYIL NORTH, PATTAMBI ROAD,
         P.O.KUNNAMKULAM, PIN - 680 503.

    3    K.A.SOMAN,
         AGED 40 YEARS
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R.F.A.No.395 of 2018
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           S/O.LATE ACHUTHAN, KANDIRUTHI HOUSE, PARAYIL
           NORTH, PATTAMBI ROAD, P.O.KUNNAMKULAM, PIN -
           680 503.

    4      K.A.ANIL,
           AGED 39 YEARS, S/O.LATE ACHUTHAN, KANDIRUTHI
           HOUSE, PARAYIL NORTH, PATTAMBI ROAD,
           P.O.KUNNAMKULAM, PIN - 680 503.

           BY ADV SRI.RAJIT


RESPONDENTS/PLAINTIFFS AND DEFENDANTS 5 TO 12:

    1      BAVANI
           AGED 78 YEARS, D/O. KANDIRUTHI LATE PANJAN,
           IYYAL DESOM, CHIRANELLUR VILLAGE, TALAPPILLY
           TALUK, PIN - 680 004, THIRUVANANTHAPURAM

    2      K.P.JANARDHANAN,
           AGED 67 YEARS, LAKSHMI NIVAS, E.M.S.LANE,
           POOTHOLE DESOM, ARANATTUKARA VILLAGE, THRISSUR
           TALUK, PIN - 680 004.

    3      KOUSALYA,
           AGED 75 YEARS, W/O.LATE KANDIRUTHI KUTTAN,
           NAGALASSERY AMSOM AND DESOM, PIN - 679 303.

    4      ANIRUDHAN (DIED)
           AGED 52 YEARS, S/O.LATE KANDIRUTHI KUTTAN,
           KAIRALI STREET, NETHIRIMANGALAM AMSOM AND
           DESOM - 679 303.
           ADDL. RESPONDENTS 15 TO 17 ARE IMPLEADED AS
           THE LEGAL REPRESENTATIVES OF DECEASED 4TH
           RESPONDENT AS PER ORDER DATED 13.03.2024 IN
           I.A.NO.1 OF 2024 IN RFA NO.395/2018.

    5      JAYAN,
           AGED 51 YEARS, S/O.LATE KANDIRUTHI KUTTAN,
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R.F.A.No.395 of 2018
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           POLPAKKARA AMSOM AND DESOM - 679 576.

    6      SUBASHINI,
           AGED 47 YEARS, D/O.LATE KANDIRUTHI KUTTAN,
           RESIDING AT VISAKHAM VEETTIL, NANNIYANKODE
           DESOM, NAGALASSERY AMSOM,
           OTTAPALAM TALUK - 679 576.

    7      NJANESWARAN,
           AGED 68 YEARS
           S/O.LATE NARAYANI, KANDIRUTHI HOUSE, PARAYIL
           NORTH, PATTAMBI ROAD, P.O.KUNNAMKULAM, PIN -
           680 503. ADDRESS MODIFIED AS FOLLOWS
           NJANESWARAN, S/O.LATE NARAYINI,KUTTITHARA
           HOUSE, PERUMANNUR, P.O.,CHALISSERY, PALAKKAD
           DISTRICT, PIN 679536

    8      RADHA,
           AGED 61 YEARS
           D/O.LATE NARAYANI, KANDIRUTHI HOUSE, PARAYIL
           NORTH, PATTAMBI ROAD, P.O.KUNNAMKULAM, PIN -
           680 503. ADDRESS MODIFIED AS FOLLOWS
           RADHA,W/O.DEVADAS, PARATHIL HOUSE, NEAR
           KALIKULAM TEMPLE, P.O. KOTTAPPADI, THRISSUR
           DISTRICT, PIN 680 505.

    9      NALINI,
           AGED 57 YEARS
           D/O.LATE NARAYANI, KANDIRUTHI HOUSE, PARAYIL
           NORTH, PATTAMBI ROAD, P.O.KUNNAMKULAM, PIN -
           680 503. ADDRESS MODIFIED AS FOLLOWS NALINI,
           W/O.PRABHAKARAN, VALIIYA VALAPPIL VEEDU, P.O.
           PORKKULAM, VIA. KUNNAMKULAM, THRISSUR
           DISTRICT, PIN 680542.

    0      SREENIVASAN,
           AGED 49 YEARS
           S/O.LATE NARAYANI, KANDIRUTHI HOUSE, PARAYIL
           NORTH, PATTAMBI ROAD, P.O.KUNNAMKULAM, PIN -
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           680 503. ADDRESS MODIFIED AS FOLLOWS
           SREENIVASAN, S/O.LATE NARAYANI, H/O
           T.P.PRAVEENA, C/O.PUSHKARAN, THALEKKARA VEEDU,
           P.O. WEST MANGAD, VIA KUNNAMKULAM, KIZHOOR,
           THRISSUR DISTRICT, PIN-680542.

    11     GIRIJA,
           AGED 53 YEARS
           D/O.LATE NARAYANI, KANDIRUTHI HOUSE, PARAYIL
           NORTH, PATTAMBI ROAD, P.O.KUNNAMKULAM, PIN -
           680 503. ADDRESS MODIFIED AS FOLLOWS GIRIJA,
           W/O.HARIDASAN, NEELIYATTIL VEEDU,
           P.O.ERAVAKKAD, KUMARANELLUR, PALAKKAD
           DISTRICT, PIN 679552.

    12     SUKUMARAN,
           AGED 84 YEARS
           S/O.LATE BARGAVI, KANDIRUTHI HOUSE, PARAYIL
           NORTH, PATTAMBI ROAD, P.O.KUNNAMKULAM, PIN -
           680 503.

    13     MADHU,
           AGED 50 YEARS
           S/O.LATE BARGAVI, KANDIRUTHI HOUSE, PARAYIL
           NORTH, PATTAMBI ROAD, P.O.KUNNAMKULAM, PIN -
           680 503.

    14     GEETHA,
           AGED 49 YEARS
           D/O.LATE BARGAVI, KANDIRUTHI HOUSE, PARAYIL
           NORTH, PATTAMBI ROAD, P.O.KUNNAMKULAM, PIN -
           680 503. ADDRESS MODIFIED AS FOLLOWS GEETHA,
           D/O SUKUMARAN, PUTHENVEETTIL, P.O.KALLEPPADAM,
           PAZHAYANNUR, THRISSUR DISTRICT, PIN- 680 587.
           THE ADDRESSES OF THE RESPONDENTS 7 TO 11 AND
           14 HAVE BEEN CORRECTED IN THE FOLLOWING MANNER
           AS PER ORDER DATED 28/02/2024 IN MEMO DATED
           14/2/2024 IN RFA 395/2018
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R.F.A.No.395 of 2018
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    15     LEENA
           W/O LATE ANIRUDHAN, KANDIRITHI HOUSE, KAIRALI
           STREET, PATTAMBI P.O., PALAKKAD DISTRICT

    16     ABHILASH K.A
           S/O. LATE ANIRUDHAN, KANDIRITHI HOUSE, KAIRALI
           STREET, PATTAMBI P.O., PALAKKAD DISTRICT,

    17     AJITH
           AGED 30 YEARS
           S/O. LATE ANIRUDHAN, KANDIRITHI HOUSE, KAIRALI
           STREET, PATTAMBI P.O., PALAKKAD DISTRICT,


           BY ADVS.
           SRI.SANTHEEP ANKARATH
           SRI.J.RAMKUMAR


THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON
05.08.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
                                                        2025:KER:58688




           SATHISH NINAN & P. KRISHNA KUMAR, JJ.
             = = = = = = = = = = = = = = = = = =
                     R.F.A.No.395 of 2018
             = = = = = = = = = = = = = = = = = =
           Dated this the 5th day of August, 2025

                                 JUDGMENT

Sathish Ninan, J.

The preliminary decree in a suit for partition is under

challenge by defendants 1 to 4.

2. The plaint schedule property originally belonged

to one Kali, under Ext.A4 Assignment Deed. Kali was

succeeded by his son, Panjan. Panjan and his wife Ammu, had

six children, namely, Narayani, Bhargavi, Kuttan, Bhavani,

Achuthan and Janardhanan. Panjan and Ammu are no more.

Bhavani is the first plaintiff. Janardhanan is the 2 nd

plaintiff. Legal heirs of Kuttan are plaintiffs 3 to 6.

Achuthan is no more and his legal heirs are defendants 1 to

4. Narayani is no more and defendants 5 to 9 are the legal 2025:KER:58688

heirs. Bhargavi is no more and defendants 10 to 12 are the

legal heirs. The plaintiffs claimed partition and separate

possession of the property.

3. The suit was contested by defendants 1 to 4, who

are the legal heirs of Achuthan. They set up Ext.B1 Will

allegedly executed by Panjan. bequeathing the property to

his predecessor Achuthan.

4. The plaintiffs challenged the Will as fabricated.

5. The trial court held that the plaintiffs failed to

dispel the suspicious circumstances surrounding the

execution of the Will. Accordingly, Ext.B1 Will was held

against and a preliminary decree for partition was passed.

6. We have heard Shri.Rajit, the learned counsel for

the appellants and Shri.Santheep Ankarath, the learned

counsel for the respondents.

7. The points that arise for determination in the

appeal are;

(i) Have the propounders proved the due execution and the genuineness of Ext.B1 Will?

2025:KER:58688

(ii) Have the propounders succeeded in dispelling the suspicious circumstances, if any, surrounding the due execution of the Will?

(iii) Does the decree and judgment of the trial court warrant any interference?

8. The partibility of the property and the shares,

but for Ext.B1 Will, is not in dispute. Ext.B1 Will is dated

20.12.1976. It is an unregistered Will. DW2 is one of the

attestors to the Will. He has deposed in tune with the

requirements of attestation under Section 63 (c) of the

Indian Succession Act and proof in terms of Section 68 of

the Evidence Act. However, we find that there are various

suspicious circumstances involved, which remain unexplained,

to find the genuineness of Ext.B1 Will. The suspicious

circumstances are:-

(a) Ext.B1 Will is of the year 1976. Panjan died in the year 1978. The legatee under Ext.B1, namely, Achuthan, died in the year 1997, i.e., after 19 years of death of Panjan. For all these 19 years, Ext.B1 was not brought to light. Achuthan never set up Ext.B1 Will during his life time.

(b) Exts.A1 to A3 and Ext.B6 are the letters sent by Achuthan to the other sharers. The genuineness of the letters are not in dispute. In the letters, Achuthan has acknowledged the availability of the property for partition. He never set up any Will and claim exclusive right over the 2025:KER:58688

property.

(c) Ext.A5 is a notice sent by the plaintiffs claiming partition of the property. Defendants 1 to 4 did not choose to send any reply asserting title in them or in their predecessor Achuthan projecting Ext.B1 Will.

(d) The unregistered Will was not produced along with the written statement. It was produced only at the time of trial.

(e) After the receipt of Ext.A5 notice demanding partition, defendants 1 to 4 proceeded to file a suit as O.S.No.910 of 2013 for partition of the property in between them, on the strength of Ext.B1 Will. No written statement was filed by the defendants therein. After the passing of the preliminary decree, the parties jointly entered into Ext.B5 Partition Deed, apparently in an attempt to lend credence to the Will.

(f) The trial court noticed that, a bare perusal of Ext.B1 does not inspire confidence regarding its genuineness.

(g) Under Ext.B1 Will, the other five children of Panjan have been excluded. No explanation is offered as to why they were excluded. No circumstances or reason justifying such exclusion is suggested.

9. The circumstances as noted above are, of no doubt,

suspicious circumstances, which the propounder of the Will

was obliged to dispel. Not only that the propounders failed

to do so, but the contents of Exts.A1 to A3 and B6 letters

and also the circumstances noted above, impel this Court to

hold against the genuineness of the Will.

10. The trial court had taken note of all the relevant 2025:KER:58688

materials and have held against Ext.B1 Will. There is no

material to upturn the said finding.

The appeal lacks merit and is dismissed. No cost.

Sd/-

SATHISH NINAN JUDGE