Kerala High Court
B.Kamaladevi vs S.H.Ajitha on 25 July, 2025
RFA No.255/2022
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
FRIDAY, THE 25TH DAY OF JULY 2025 / 3RD SRAVANA, 1947
RFA NO. 255 OF 2022
AGAINST THE JUDGMENT AND DECREE DATED 14.07.2022 IN OS
NO.313 OF 2011 OF PRINCIPAL SUB COURT, THIRUVANANTHAPURAM
APPELLANTS/PLAINTIFFS 2 TO 4:
1 B.KAMALADEVI,
AGED 81 YEARS, D/O. LATE BHANUMATHI,
RESIDING AT KESHAVEEYAM, EDAVAKOD,
SREEKARYAM-P.O, THIRUVANANTHAPURAM,
PIN-695011
2 B. PRABHA KUMARI,
AGED 71 YEARS, D/O. LATE BHANUMATHI,
RESIDING AT 8/960, UDAYADRI, KALLAMPALLY,
SREEKARYAM-P.O, THIRUVANANTHAPURAM,
PIN-695011
3 REMABHAI,
AGED 68 YEARS, D/O. LATE BHANUMATHI,
RESIDING AT T.C. 8/654, ELAMKULAM,
SREEKARYAM-P.O, THIRUVANANTHAPURAM,
PIN-695011
BY ADVS.
SHRI.M.R.ANANDAKUTTAN
SMT.M.HEMALATHA
SRI.MAHESH ANANDAKUTTAN
SMT.M.J.SAJITHA
SMT.K.K.SUBITHA
RFA No.255/2022
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RESPONDENTS/DEFENDANTS:
1 S.H.AJITHA, AGED 46 YEARS,
WIFE OF LATE K. SURESH KUMAR,
RESIDING AT 'SOWPARNIKA',
KALLAMPALLY JUNCTION,
MEDICAL COLLEGE-PO,
CHERUVAIKKAL VILLAGE,
THIRUVANANTHAPURAM, PIN-695 011.
2 PARVATHI, AGED 26 YEARS,
D/O. LATE K. SURESH KUMAR,
RESIDING AT 'SOWPARNIKA',
KALLAMPALLY JUNCTION,
MEDICAL COLLEGE-PO,
CHERUVAIKKAL VILLAGE,
THIRUVANANTHAPURAM, PIN-695 011.
3 VIVEK, AGED 24 YEARS,
SON OF LATE K. SURESH KUMAR,
RESIDING AT 'SOWPARNIKA',
KALLAMPALLY JUNCTION,
MEDICAL COLLEGE-PO,
CHERUVAIKKAL VILLAGE,
THIRUVANANTHAPURAM, PIN-695 011.
4 B. LEELAKUMARI, AGED 76 YEARS
RESIDING AT KARIYAM, SREEKARYAM P.O.,
THIRUVANANTHAPURAM, PIN- 695 011.
BY ADV SRI.R.GOPAN
THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON
16.07.2025, THE COURT ON 25.07.2025 DELIVERED THE FOLLOWING:
RFA No.255/2022
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JUDGMENT
Dated this the 25th day of July, 2025
Additional plaintiffs 2 to 4 in O.S. No.313/2011 on the file of the
Principal Sub Court, Thiruvananthapuram are the appellants. (For the
purpose of convenience, the parties are hereafter referred to as per their
rank before the trial court).
2. The original plaintiff filed the above suit for partition of the
plaint schedule properties belonging to late Suresh Kumar. The original
plaintiff is none other than the mother of the deceased. The defendants
are the widow and minor children of the deceased. According to the
plaintiff, Suresh Kumar died intestate on 31.12.2010 and as such the
plaint schedule properties are to be divided among the plaintiffs and
defendants 1 to 3, as they are governed by the Hindu Succession Act.
3. In the written statement filed by the defendants, they have
raised a contention that late Suresh Kumar had executed a Will
bequeathing the scheduled properties in favour of the defendants and as
such the plaint schedule properties are not partible. It is also contended
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that late Suresh Kumar constructed a multi-storied building in plaint
schedule property by availing financial assistance from State Bank of
Tranvancore, Indian Overseas Bank and also by selling 95 sovereigns of
gold ornaments belonging to defendants 1 to 3. He had also received
huge amounts from tenants in the said building, towards security
deposit. He also received loans from several other persons. Therefore,
they prayed for dismissing the suit.
4. The trial court framed four issues. The evidence in the case
consists of the oral testimonies of PWs 1 & 2, DWs 1 & 2 and Exhibits
A1 to A3 , B1 to B9, X1 and X2. After evaluating the evidence on
record, the trial court dismissed the suit holding that the defendants have
succeeded in proving the execution of Exhibit B1 Will and as such the
plaint schedule properties are not partible. During the pendency of the
suit, the original plaintiff died and her legal representatives were
impleaded as additional plaintiffs 2 to 4. Being aggrieved by the above
judgment of the trial court, additional plaintiffs 2 to 4 preferred this
appeal.
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5. Now, the points that arise for consideration are the following:
1) Whether the defendants have succeeded in proving due
execution of Exhibit B1 Will?
2) Whether the impugned judgment and decree of the trial
court calls for any interference in the light of the grounds
raised in the appeal?
6. Heard Smt. M. Hemalatha, the learned counsel for the
appellants and Sri.R. Gopan, the learned counsel for the
respondents/defendants.
7. The point: Admittedly, the plaint schedule properties belonged
to late Suresh Kumar, the son of the original plaintiff, husband of 1 st
defendant and father of defendants 2 and 3. While according to the
plaintiff, Suresh Kumar died intestate and as such she is entitled to get
1/4th share from the said property, according to the defendants, the plaint
schedule properties are not partible.
8. The learned counsel for the appellants would argue that the
defendants have not succeeded in proving the execution of Exhibit B1
Will and also to remove the suspicious circumstances surrounding the
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said Will. Relying upon the decision of a Single Bench of this Court in
Rajagopal v. Venugopal [2024 KHC423], she would argue that it is the
burden of the propounder of the will to prove its due execution and to
remove all suspicious circumstances surrounding the same.
9. According to the learned counsel, at the time of execution of
Ext.B1, Suresh Kumar had no health issues and expectation of death and
as such there was no chance for him to execute such a Will. It was
further argued that the plaintiff, who is the mother and natural heir of the
deceased was excluded from inheritance, which is a suspicious
circumstance. It was also argued that no date was put on Exhibit B1. It
is also argued that the crucial attestor of Exhibit B1, Vaidyanath was not
examined by the defendants deliberately and that the evidence of DW2
is not sufficient to prove the execution of Exhibit B1. On the other
hand, the learned counsel for the defendants would argue that through
the evidence of DWs 1 and 2, the defendants have succeeded in proving
the due execution of Exhibit B1 and further according to him, there are
no suspicious circumstances surrounding the Will. Therefore, he prayed
for dismissing the suit.
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10. The law is well settled that it is the burden of the propounder
of the Will to prove that the Will in question was executed by the
testator. The propounder also has to remove the suspicious
circumstances surrounding the will. Section 63(c) of the Indian
Succession Act dealing with the execution of wills is extracted below for
reference:
"(c) The will shall be attested by two or more witnesses, each
of whom has seen the testator sign or affix his mark to the will
or has seen some other person sign the will, in the presence
and by the direction of the testator, or has received from the
testator a personal acknowledgment of his signature or mark,
or of the signature of such other person; and each of the
witnesses shall sign the will in the presence of the testator, but
it shall not be necessary that more than one witness be present
at the same time, and no particular form of attestation shall be
necessary."
11. As per Section 68 of the Indian Evidence Act, at least one
attesting witness must be examined to prove the Will. Exhibit B1 is not
a registered Will. It is a computer print having six pages and it was
attested by two witnesses, N. Vaidyanath and A. Gopakumar. The 2nd
witness A Gopakumar was examined as DW2. At the time of evidence,
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DW2 deposed that as requested by Suresh Kumar, he went to his
residence and saw Suresh Kumar affixing his signature in all the pages
of Exhibit B1. He also deposed that he affixed his signature in Exhibit
B1 as an attestor. He further deposed that, the other witness also affixed
his signature in Exhibit B1 in the presence of himself and Suresh Kumar.
12. At the time of evidence, it is revealed that the testator Mr.
Suresh Kumar was not on good terms with his mother and siblings
namely, the original plaintiff and additional plaintiffs 2 to 4. There were
two civil suits between them. Exhibit B7 is the certified copy of the
judgment in O.S. No.550/2010 and 662/2010 on the file of the 1 st
Additional Munsiff Court, Thiruvananthapuaram. O.S. No.550/2010
was filed by Suresh Kumar against his mother, the plaintiff herein
seeking permanent prohibitory injunction restraining the defendant from
demolishing the southern and eastern boundaries of plaint A schedule
property therein and annexing portions of the same for widening of the
pathway on its south. O.S. No.662/2010 was filed by the plaintiff herein
against Suresh Kumar seeking permanent prohibitory injunction from
constructing any new structure within plaint F schedule pathway therein
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and from reducing its width. It appears that both the above suits were
dismissed by the learned Munsiff.
13. The learned counsel for the appellants invited my attention to
the evidence of PW1 to argue that there was no enmity between the
plaintiff and Suresh Kumar so as to exclude her from inheriting him. It
is true that during the cross examination, DW1 deposed that she has no
enmity with the plaintiff. However, the fact remains that during the
lifetime of Suresh Kumar, he filed a suit against his mother and his
mother filed a suit against him and it was fought till its logical
culmination by her other children, as revealed from Exhibit B7. In the
above circumstances, there are valid reasons for Suresh Kumar to
execute Exhibit B1 Will, excluding his mother from inheriting his
property. At the same time, in Exhibit B1, he made provisions for
payment of Rs.5,000/- per month to his mother from the rent received
from the plaint schedule property. Therefore, it can be seen that the
testator has not forgotten or completely excluded his mother, while
executing the will. In the above circumstance, for the mere reason that
no landed property was set apart to the plaintiff, it cannot be held that it
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is a suspicious circumstance against Exhibit B1.
14. It is true that at the time of execution of Exhibit B1 Will,
Suresh Kumar was in his middle age. Though in the body of Exhibit B1,
the date of execution of Exhibit B1 is not mentioned, both the attestors
have affixed their dated signature with the date 24.12.2007. During the
cross examination of PW2 also, the suggestion put was to the effect that
the date of execution of Exhibit B1 was 24.12.2007. It is also revealed
that Suresh Kumar died on 31.12.2010, within three years of execution
of Exhibit B1 Will. According to the learned counsel, there were no
serious ailments to Suresh Kumar. We do not know whether Suresh
Kumar had any idea about the condition of his health. The fact remains
that he died within a period of three years from the date of execution of
Exhibit B1. For the mere reason that the plaintiff was not aware of the
health condition of Suresh Kumar and for the reason that he had
executed Exhibit B1 during the middle age, it cannot be taken as a
suspicious circumstance surrounding Ext.B1 will.
15. DW2, one of the attesting witnesses examined by the
defendants categorically deposed that Suresh Kumar affixed his
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signature in Exhibit B1 in his presence and also that he along with other
attesting witnesses affixed their signature in the will in the presence of
Suresh Kumar. Though during the extensive cross examination of
DW2, the learned counsel for the plaintiff has brought out some
discrepancies in his evidence relating to the evidence given by him as a
witness in Exhibit B7 suit and also with regard to his knowledge about
the contents of Exhibit B7, nothing could be brought out to discredit his
testimony that Exhibit B1 was executed by late Suresh Kumar in the
presence of himself and the other attestor Vaidyanath and that they
signed in it, in the presence of Suresh Kumar. In other words, the
evidence of DW2 that Exhibit B1 was executed by late Suresh Kumar
voluntarily and out of his free will and volition stands proved.
Therefore, the trial court was perfectly justified in holding that the
defendants have succeeded in proving the due execution of Exhibit B1
Will and also that the plaint schedule properties are not partible. I do not
find any irregularity or illegality in the above finding of the trial court so
as to call for any interference. Therefore, this appeal is liable to be
dismissed. Point answered accordingly.
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16. In the result, this appeal is dismissed. Considering the close
relation between the parties, I direct both parties to suffer their
respective costs.
All pending interlocutory applications shall stand dismissed.
Sd/-
C. PRATHEEP KUMAR,
JUDGE
sou.
