Kerala High Court
Sebastian vs Rani on 4 July, 2025
Author: Sathish Ninan
Bench: Sathish Ninan
2025:KER:48811
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR
FRIDAY, THE 4TH DAY OF JULY 2025 / 13TH ASHADHA, 1947
RFA NO. 17 OF 2015
AGAINST THE JUDGMENT DATED 18.09.2014 IN OS NO.185 OF 2010 OF
SUB COURT, KOCHI
-----
APPELLANTS/PLAINTIFFS:
1 SEBASTIAN,
AGED 56 YEARS,
S/O.LAWRENCE, MALIYAKKAL HOUSE, PALLURUTHY SOUTH,
PERUMPADAPPU, PALLURUTHY VILLAGE,KOCHI TALUK,
KOCHI 682 006.
2 LAWRENCE KUNHI, AGED 23 YEARS,
S/O.SEBASTIAN, MALIYAKKAL HOUSE, PALLURUTHY ,
PERUMPADAPPU, KOCHI 682 006.
3 DIVYA ANNIE, AGED 19 YEARS,
D/O.SEBASTIAN, MALIYAKKAL HOUSE, PALLURUTHY,
PERUMPADAPPU, KOCHI 682 006.
4 JULIET,
AGED 46 YEARS,
W/O.SEBASTIAN, MALIYAKKAL HOUSE, PALLURUTHY,
PERUMPADAPPU, KOCHI 682 006.
BY ADVS.
SRI.N.N.SUGUNAPALAN (SR.)
SRI.S.SUJIN
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RFA NO. 17 OF 2015 -2-
RESPONDENTS/DEFENDANTS:
1 RANI, AGED 54 YEARS,
WIDOW OF DECEASED TOMY LAWRENCE,
RESIDING AT HOUSE NO. CCXI/3238 (OLD NO.18 2360),
'KONNOTH HOUSE', NEAR KOCHUPALLY,THOPPUMPADY,
KOCHI 682 005.
2 TUTTUMON TONY LAWRENCE, AGED 20 YEARS,
S/O.LATE TOMY LAWRENCE,
RESIDING AT HOUSE NO.CCXI/3238 (OLD NO.18 2360),
KONNOTH HOUSE,
NEAR KOCHUPALLY,THOPPUMPADY,KOCHI 682 005.
BY ADVS.
SRI.K.N.SIVASANKARAN
SHRI.SUNIL SHANKER
THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON
04.07.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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SATHISH NINAN &
P. KRISHNA KUMAR, JJ.
= = = = = = = = = = = = = = = = = =
R.F.A. No.17 of 2015
= = = = = = = = = = = = = = = = = =
Dated this the 4th day of July, 2025
J U D G M E N T
Sathish Ninan, J.
The suit for partition was dismissed by the trial
court. The plaintiffs are in appeal.
2. The first plaintiff is the brother of late Tomy
Lawrence. The other plaintiffs are the wife and children of
the first plaintiff. The defendants are the wife and son of
Tomy Lawrence. The properties sought to be partitioned
belonged to late Tomy Lawrence. Tomy Lawrence died on
08.05.2010.
3. The plaintiffs claim that Tomy Lawrence had executed
Ext.A1 Will dated 04.05.2010 bequeathing his assets. As per
the bequest, the plaintiffs are given shares over his assets
along with the defendants. The plaintiffs seek for partition
in terms of the Will.
4. The defendants challenged the genuineness of the
Will. It was contended that Ext.A1 Will is not one executed
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by him and that the signature in Ext.A1 Will is not that of
Tomy Lawrence.
5. The trial court on appreciation of the evidence held
that the plaintiffs have failed to prove the due execution
and genuineness of Ext.A1 Will. Accordingly the suit was
dismissed.
6. We have heard Sri.N.N.Sugunapalan, the learned
Senior Counsel for the appellants-plaintiffs and Sri.K.N.
Sivasankaran, the learned counsel for the respondents-
defendants.
7. The points that arise for determination in this
appeal are :-
(i) Does the evidence on record substantiate the due execution and
genuineness of Ext.A1 Will?
(ii) Has the plaintiffs succeeded in dispelling the suspicious
circumstances if any surrounding the Will?
(iii) Does the decree and judgment of the trial court warrant any
interference?
8. As per the bequest under Ext.A1 Will, the first
defendant, who is the wife of Tomy Lawrence is entitled for
an amount of ₹ 1,000/- from his pension. There is no other
bequest in her favour. Plaint schedule item Nos.4 and 5 is
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bequeathed in favour of the first plaintiff. Out of the
plaint 'B' and 'C' schedule, which are amounts due, the
plaintiffs have been bequeathed 40%. Plaint 'A' schedule
item No.3 has been bequeathed in favour of the second
plaintiff. From item No.6 in plaint 'A' schedule an extent
of 15 cents is bequeathed in favour of the third plaintiff.
The remaining has been bequeathed in favour of the second
defendant. Noticeably, the first defendant-wife has been
practically disinherited. So also a substantial portion of
the assets are bequeathed in favour of the plaintiffs.
9. The learned Senior Counsel Sri.N.N.Sugunapalan
submitted that this is a case where the plaintiffs are not
the propounders of the Will. Plaintiffs are not the only
legatees under the Will. The Will was produced not by them.
There is no evidence that the plaintiffs had taken any
active role in the execution of the Will. The trial court
went wrong in casting the burden on the plaintiff to prove
the signature of late Tomy Lawrence on Ext.A1 Will. The
defendants having urged that the signature is forged, it is
for them to prove it. The trial court also committed
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jurisdictional error in having not framed an issue with
regard to execution of the Will. The evidence on record
reveals that Tomy Lawrence and the defendants were living
separately for the past several years and was being taken
care of by the plaintiffs, which prompted the late Tomy
Lawrence to execute Ext.A1 Will, it is argued.
10. We are unable to agree with the argument of the
learned Senior Counsel that the plaintiffs are not the
propounders of the Will. The propounder of the Will is a
person who puts forward the Will and seeks establishment of
rights under the Will. The mere fact that the Will was not
marked in evidence through the plaintiffs or that there are
other legatees under the Will does not mean that they are
not the propounders. It is the plaintiffs who seek for
establishment of rights under the Will and are its
propounders.
11. Ext.A1 Will is unregistered. PW1 is one of the
attestors (attestor No.2) to Ext.A1 Will. PW2 is the
custodian of the Will, the person to whom late Tomy Lawrence
is claimed to have entrusted the Will. PW3 is the first
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plaintiff. The first defendant was examined as DW1. The
Assistant Commissioner of the Commercial Tax Department was
examined as DW2. Tomy who was a lawyer, later became the
Assistant Commissioner in the Sale Tax Department.
12. To prove the execution of Ext.A1 Will, the
plaintiffs rely on the evidence of PWs.1 and 2. PW1 has
spoken in tune with the elements of attestation as mandated
under the Evidence Act. He claimed that he and Tomy Lawrence
were known to each other since childhood and they were co-
workers in few church related organisations; Tomy was the
treasurer and legal advisor at that time. In his cross-
examination also he asserted that he was close to Tomy
Lawrence since younger days. It has come out in cross-
examination that he studied only till 7 th standard and he
does not know in which class he was studying when Tomy
Lawrence studied in the school. He also deposed that the
period during which they were co-workers in the
organisations was 36 years back. At the time of examination,
PW1 was aged 48 years. Therefore, he would have been aged
only 12 years during the time when it is claimed that they
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were co-workers in certain organisations.
13. PW1 claimed that he was very close to Tomy Lawrence
and that he used to go to his house once in a week. However,
he pleaded ignorance as to when Tomy Lawrence bought land
and constructed a house. He has not gone for the house
warming ceremony. In further cross-examination he would
depose that he started going to the tarwad house of Tomy to
meet him since the year 2005 only. It has come out in
evidence that Tomy Lawrence had an ophthalmic procedure on
03.05.2010, but PW1 was unaware of the same.
14. The evidence of PW1 is to the effect that Tomy
Lawrence was suffering from various ailments. But in cross-
examination he would depose that for the purpose of
execution of Ext.A1 Will Tomy Lawrence came walking and was
healthy. He has also deposed that even on the previous day
of execution of the Will Tomy went to his office.
15. The claim is that Ext.A1 Will was executed at the
residence of PW1. PW1 would depose that, on the previous
Sunday while at church he was told by Tomy Lawrence that he
is coming home in the evening. But did not disclose the
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purpose. On 04.05.2010 evening Tomy Lawrence came with PW2
and the other witness to his house, and the Will was read
over and signed. He deposed that after signing Ext.A1 it was
put back in the cover and was with Tomy Lawrence. According
to PW1, after signing the Will Tomy said, "ആരരെരയെങങ്കിലല
വങ്കിശശശ്വാസമുള്ള ആരളെ ഏൽപങ്കിക്കണല എനന്ന് പറഞ."(needs to be entrusted to someone
reliable). Here it is to be noticed that Ext.A1 recites that the
Will is being entrusted with PW2. Both PWs.1 and 2 has said
that the Will was read over by Tomy Lawrence before signing.
If the Will contained such a recital then the afore quoted
statement of Tomy makes no sense. Further, though Ext.A1
recites that the Will is handed over to PW2, he would depose
that the Will was handed over to him at the road near the
house of PW1, that the Will was signed at 6.30 p.m. and it
was entrusted to him at about 6.45 to 7.00 p.m. The above,
tells upon the acceptability and reliability of the
evidence.
16. PW2 is the uncle of first plaintiff and Tomy
Lawrence. A reading of his evidence would indicate that
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without disclosing the purpose, he and the other witness
were taken to the residence of PW1 where the Will was
executed. None of them were aware of the purpose for which
their presence was required at the residence of PW1. The
Will was typewritten and brought by Tomy Lawrence to the
residence of PW1. Their consent to be witnesses to the Will
was not obtained previously. However, in Ext.A1 Will, the
names and addresses of the witnesses with their house number
etc. have been typewritten. Unless all those details were
provided to Tomy Lawrence earlier, it could not have found a
place therein. So also, the case put forward regarding
preparing of such a document without informing and seeking
their consent to be witnesses and to keep custody of the
Will, cannot be easily accepted.
17. Ext.A34 is the medical report issued from an
Ophthalmic hospital. It discloses that late Tomy Lawrence
had underwent treatment for advance diabetic retinopathy and
Pan Retinal Photocoagulation in both eyes on 03.05.2010. The
Will is claimed to have been executed on the evening of
04.05.2010. It is difficult to believe that after undergoing
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such procedure on the previous day in both the eyes, he
would have went to the house of PW1 and that too late in the
day. Late Tomy Lawrence was Deputy Commissioner in the Sales
Tax Department. In the absence of any suggestion regarding
special reasons it is difficult to accept that he had went
to the house of PW1 for the purpose of execution of the
Will. There is no case that Tomy Lawrence was a regular
visitor at the house of PW1.
18. It is relevant to note that Ext.A1 gives specific
details of all the assets of Tomy Lawrence including
document numbers, survey numbers and even survey sub-
division numbers of the properties, LIC policy numbers, Bank
Account numbers etc. However, going by the evidence of the
first plaintiff as PW3, the documents were in his custody.
He deposed, "നങ്കിങ്ങൾ ഹശ്വാജരെശ്വാക്കങ്കിയെ ആധശ്വാരെങ്ങളല securities ഉല നങ്കിങ്ങൾക്കന്ന് എപപശ്വാൾ
കങ്കിടങ്കി ? പചേടനുള്ളപപശ്വാൾ തരന എലശ്വാ പരെഖകളല എരന ഏൽപങ്കിചങ്കിരുന. Documents
എരനങങ്കിലല പചേടൻ എരന്റെ കയങ്കിൽ നങ്കിനല തങ്കിരെങ്കിച്ചു വശ്വാങ്ങങ്കിയെങ്കിടങ്കില . Documents ഓപരെശ്വാനല
കങ്കിട്ടുപമശ്വാൾ നങ്കിങ്ങരളെ ഏൽപങ്കിക്കശ്വാറശ്വായെങ്കിരുനപവശ്വാ ? അരത witness adds:- അമ്മയുരടെ രപടങ്കിയെങ്കിൽ
വകല. എരന്തെങങ്കിലല ആവശശ്യമുരണ്ടെങങ്കിൽ പചേടൻ എടുകല. പലതവണയുല എടുതങ്കിട്ടുണ്ടെന്ന്.
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എന്തെശ്വാവശശ്യതങ്കിനശ്വാണന്ന്? Survey നമർ പനശ്വാക്കശ്വാനുല മറല എടുതങ്കിട്ടുണ്ടെന്ന്. എനശ്വാണവസശ്വാനല
എടുതതന്ന് എനന്ന് ഓർമ്മയെങ്കില." Ext.A1 was executed four days before
Tomy's death and PW3 does not have a case that all the
documents of Tomy were handed over to him during that
period. Moreover, his statement that the documents were
taken for verifying the survey number, is evidently made to
give an explanation as to how Ext.A1 mentions such details.
The statement is not worthy of credence.
19. The defendants disputed the signatures in Ext.A1
Will. Ext.X1 series are few official records containing the
signatures of Tomy Lawrence. They were summoned by the Court
at the request of the defendant. The trial court on a
perusal of the same opined that there are similarities with
the signatures in Ext.A1. We have also perused the
signatures in Ext.A1 and Ext.X1. We noticed that, though all
the signatures in Ext.A1 are exactly identical, there is
apparent dissimilarity between the ones in the official
records and those in Ext.A1. The signatures in Ext.A1
contain two rows of spiral like drawings, one row being just
above the horizontal line drawn under the signature, which
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is conspicuously absent in the signatures in Ext.X1 official
records. We are not to be understood to have ventured to
find on the genuineness of the signatures in Ext.A1 by such
comparison. We only wanted to notice the above in the light
of the observation by the trial court that there are
similarities between the signatures in Ext.A1 and the ones
in the official records.
20. The learned Senior Counsel for the appellant would
contend that when the defendants allege forgery, it was for
them to take steps to obtain expert opinion and to prove the
contention. The learned senior counsel relied on the
judgment of the Apex Court in Meenakshiammal (Dead) through Lrs. & Ors.
v. Chandrasekaran & anr. (2005 (1) SCC 280), to canvass the contention.
21. As was noticed supra, the defendants had denied the
execution of Ext.A1 Will by Tomy Lawrence and also his
purported signature in Ext.A1. The initial burden rests upon
the propounder of the Will to prove the due execution of the
Will. The suspicious circumstances if any surrounding the
execution of the Will also have significance. In Niranjan
Umeshchandra Joshi v. Mrudula Jyoti Rao And Others (2006 (13) SCC 433), the Apex
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Court held,
"33. The burden of proof that the will has been validly executed and is
a genuine document is on the propounder. The propounder is also
required to prove that the testator has signed the will and that he had
put his signature out of his own free will having a sound disposition of
mind and understood the nature and effect thereof. If sufficient
evidence in this behalf is brought on record, the onus of the
propounder may be held to have been discharged. But, the onus would
be on the applicant to remove the suspicion by leading sufficient and
cogent evidence if there exists any. In the case of proof of will, a
signature of a testator alone would not prove the execution thereof, if
his mind may appear to be very feeble and debilitated. However, if a
defence of fraud, coercion or undue influence is raised, the burden
would be on the caveator. (See Madhukar D. Shende v. Tarabai Aba
Shedage and Sridevi v. Jayaraja Shetty) Subject to above, proof of a
will does not ordinarily differ from that of proving any other
document."
In Daulat Ram And Others v. Sodha And Others [(2005) 1 SCC 40], the Apex Court
held,
"In order to assess as to whether the Will has been validly executed and is a
genuine document, the propounder has to show that the Will was signed by
the testator and that he had put his signatures to the testament of his own free
will; that he was at the relevant time in a sound disposing state of mind and
understood the nature and effect of the dispositions and that the testator had
signed in the presence of two witnesses who attested it in his presence and in
the presence of each other. Once these elements are established, the onus
which rests on the propounder is discharged. But where there are suspicious
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circumstances, the onus is on the propounder to remove the suspicion by
leading appropriate evidence. The burden to prove that the Will was forged
or that it was obtained under undue influence or coercion or by playing a
fraud is on the person who alleges it to be so."
In Indu Bala Bose and Ors v. Manindra Chandra Bose and Anr (1982 (1) SCC 20)
the Apex Court held that the suspicious circumstances may be
even as to the genuineness of the signatures of the
testator. The Court held,
"Where however there are suspicious circumstances, the onus is on the
propounder to explain them to the satisfaction of the court before the court
accepts the Will as genuine. Even where circumstances give rise to doubts,
it is for the propounder to satisfy the conscience of the court. The
suspicious circumstances may be as to the genuineness of the signatures of
the testator, the condition of the testator's mind, the dispositions made in
the Will being unnatural, improbable or unfair in the light of relevant
circumstances, or there might be other indications in the will to show that
the testator's mind was not free. In such a case the court would naturally
expect that all legitimate suspicious should be completely removed before
the document is accepted as the last Will of the testator..."
Therefore, though the plea of the objector be one of forgery
or coercion or undue influence, the initial burden is on the
propounder of the Will to prove that it was validly
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executed. The propounder has a further burden to dispel the
suspicious circumstances. On the materials available we find
that the plaintiff's have failed to discharge the burden of
proving the Will. Hence there is no force in the contention
that the defendants have failed to prove their allegation of
forgery.
22. The learned senior counsel would, relying on the
judgments of the Apex Court in Fiza Developers & Inter-Trade (P) Ltd. v
AMCI(I) Pvt. Ltd. And Anr (2009) 17 SCC 796), argued that, the trial
court failed to raise an issue regarding the execution and
genuineness of the Will which was essential and the failure
to raise such an issue has caused prejudice to the
plaintiffs. While it is true that it is necessary for the
courts to raise proper issues for trial and determination,
it is also settled law that if the parties went for trial
being fully aware of the actual dispute between the parties
and led evidence thereon, the mere failure to raise an issue
by itself is not of consequence.[See: Nedunuri Kameswaramma v.
Sampati Subba Rao (AIR 1963 SC 884), Shaik Mohammed Umar Saheb v. Kaleskar
Hasham Karimsab And Others (AIR 1970 SC 61), Guriya Alias Tabassum Tauquir
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And Others v. State Of Bihar And Another (AIR 2008 SC 951)]. In the case at
hand, the plaintiffs have laid the suit on Ext.A1 Will. When
the suit is founded on the Will, it is trite that the
propounder has to prove the Will as mandated under law, and
also to dispel the suspicious circumstances surrounding the
execution of the Will. Here, the defendants in their written
statement specifically denied the execution and genuineness
of the Will. The very signature of the executant as seen in
Ext.A1 was also denied. To secure a decree, it was
imperative on the plaintiffs to prove the due execution of
the Will and dispel the suspicious circumstances. Therefore,
the mere failure to raise an issue regarding the execution
and genuineness of the Will cannot be said to have
prejudiced the plaintiffs. The said contention cannot be
sustained.
23. A reading of the pleadings and the evidence on the
part of the plaintiffs indicate that their endeavour all
throughout was to make it appear that the first defendant
had abandoned Tomy Lawrence and they were living separately
for over 23 years, prompting him to exclude the first
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defendant from the bequest. On a reading of the entire
evidence it comes out that, Tomy Lawrence was a Deputy
Commissioner in Sales Tax Department who had to undertake a
lot of travel. After the marriage, he had constructed a
house. A property was purchased in the name of the wife.
Life Insurance Policies were taken in the name of the wife.
The second defendant was born in the wedlock eight years
after the marriage; first defendant deposed that she had
undergone treatment for pregnancy. The first defendant's
father was sick and had his leg amputated. He needed
support. The defendants were mostly at the fist defendant's
house. The defendants produced a series of photographs
during the period 1992 till 2010 which depict the presence
of Tomy Lawrence and the defendants together as a family, on
various occasions. One such photograph was admittedly taken
in the year 2010 on the occasion of confirmation ceremony of
the second defendant. Even going by the plaintiff's case,
Tomy Lawrence was taking care of the defendants well by
providing all necessaries, supplies and money. While the
evidence on record would give an impression that all was not
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so well in the family, still there is nothing to indicate
that Tomy Lawrence and the first defendant had fell apart.
When during his life time Tomy Lawrence was providing well
for his wife, it is difficult to accept that he would have
intended not to provide her anything for her on his death.
There is no evidence to find that the relationship between
Tomy Lawrence and the first defendant was strained to such
an extent that Tomy Lawrence would decide to disinherit the
first defendant. Disinheriting the first defendant in toto,
creates suspicion.
24. Though the plaintiffs suggest that Tomy Lawrence
was suffering from various ailments and that the plaintiffs
were always attending to his needs, even going by their
evidence but for a heart attack which was suffered to by
Tomy Lawrence, which even the first defendant has mentioned,
he had no serious issues. Going by the evidence of PW2 Tomy
Lawrence had underwent surgery for cataract and had
diabetes.
25. Incidentally it is relevant to note that the
plaintiff's witnesses were over anxious to make it appear
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that Tomy Lawrence had during his life-time provided
sufficiently even for the future well-being of the first
defendant. PW1 would depose "കൂടെശ്വാരത എലശ്വാ മശ്വാസവല നരലശ്വാരു സലഖശ്യയുല
അവരുരടെ ഭശ്വാവങ്കി സുരെക്ഷയശ്വായെങ്കി പടെശ്വാമങ്കി നൽകങ്കിയെങ്കിരുന.". PW2 would depose "മശ്വാസലപതശ്വാറല
ഭശ്വാവങ്കി നങ്കിപക്ഷപതങ്കിനന്ന് പവണ്ടെ തുകയുല രകശ്വാടുതങ്കിരുന.". PW3 would depose "കൂടെശ്വാരത
അവരുരടെ ഭശ്വാവങ്കി സമശ്വാദശ്യതങ്കിനശ്വായെങ്കി ആ കശ്വാലയെളെവങ്കിൽ... രൂപയുല നൽകങ്കിയെങ്കിരുന.".
Evidently, there is an over emphasis on securing the future
of the first defendant. It is nothing but an attempt to
justify her disinheritance. We find the evidence to be
artificial. The trial court which had the opportunity to
watch the demeanor of the witnesses, found PWs.1, 2 and 3 to
be not reliable. On appreciating their evidence we also
concur with the view.
26. On the entire analysis of the evidence and
circumstances, we concur with the trial court in its finding
that the plaintiffs have failed to prove the due execution
of Ext.A1 Will and also failed to dispel the suspicious
circumstances surrounding execution of the Will.
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We find no merit in the appeal. Appeal fails and is
dismissed. No costs.
Sd/-
SATHISH NINAN
JUDGE
Sd/-
P. KRISHNA KUMAR
JUDGE
kns/-
//True Copy//
P.S. To Judge
