Kerala High Court
*Sri. Paulose vs Smt. Mariyamma on 11 June, 2025
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
WEDNESDAY, THE 11TH DAY OF JUNE 2025 / 21ST JYAISHTA, 1947
FAO (RO) NO. 20 OF 2018
AGAINST THE JUDGMENT DATED 15.12.2017 IN AS NO.50 OF 2007 OF SUB
COURT, PERUMBAVOOR ARISING OUT OF THE JUDGMENT DATED 12.02.2004 IN OS NO.50
OF 1991 OF MUNSIFF COURT, PERUMBAVOOR
APPELLANT/RESPONDENT NO.1/DEFENDANT NO.1:
1 SRI. PAULOSE
S/O.YOYAKKI, AGED 86 YEARS, PADIKKAKUDIYIL HOUSE, PUZHUKKADU
KARA, VENGOOR WEST VILLAGE.. DECEASED
ADDL.A2 MARY P.P.,AGED 66 YEARS
W/O KURIAKOSE .P.O, PANKODAN HOUSE, KUMARAPURAM P.O,
MORAKKAL, ERNAKULAM, PIN-683 565.
ADDL.A3 SHIJI PAUL,
W/O RAJU MATHARA, AGED 46 YEARS,MATHARA HOUSE, ARAKKAPADY
P.O, VENGOLA, PERUMBAVOOR, ERNAKULAM - 683 656.
THE LEGAL HEIRS OF THE DECEASED SOLE APPELLANT ARE IMPLEADED
AS ADDITIONAL APPELLANTS 2 & 3 AS PER THE ORDER
DTD.31.10.2023 IN I.A.1 OF 2023.
BY ADVS.
SRI.S.SREEKUMAR (SR.)
SRI.P.MARTIN JOSE
SRI.P.PRIJITH
SRI.THOMAS P.KURUVILLA
SRI.R.GITHESH
SHRI.AJAY BEN JOSE
SRI.MANJUNATH MENON
SHRI.HARIKRISHNAN S.
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RESPONDENTS/APPELLANT&RESPONDENTS 2&3/PLAINTIFF AND ADDL.DEFENDANTS 2&3:
1 SMT. MARIYAMMA
W/O.MATHAI, ARTHUNGAL HOUSE, VENGOOR KARA, VENGOOR EAST
VILLAGE, PIN-683546.
2 JOHNY
S/O.KURIAKOSE, KUNNOTHUKUDY HOUSE, PUZHUKKAD KARA, VENGOOR
EAST VILLAGE,PIN-683546.
3 MARY
W/O.JOHNY, KUNNOTHUKUDY HOUSE,PUZHUKKAD KARA, VENGOOR EAST
VILLAGE,PIN-683546.
THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING BEEN FINALLY HEARD
ON 11.06.2025, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
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ORDER
(FAO(RO) 20 of 2018)
Dated this the 11th June, 2025
1. Appellant is the 1st defendant in O.S No. 50/1991 of the
Munsiff's Court, Perumbavoor. During the pendency of this
appeal the appellant died and the additional appellants 2 and 3
were impleaded as legal heirs of the original appellant.
2. The suit was for partition. Originally, there was only one
defendant in the suit. Later, assignees of part of the plaint
schedule properties were impleaded as defendants 2 and 3.
The plaintiff is the sister of the 1st defendant who was the sole
defendant.
3. The plaintiff filed the suit against the 1st defendant for partition
of the plaint schedule properties belonged to their parents. The
father of the plaintiff and the 1st defendant died on 07.03.1983
and the mother of the plaintiff and the 1st defendant died on
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16.09.1989. The plaintiff claimed that the plaint schedule
properties are to be partitioned between the plaintiff and the 1st
defendant and the plaintiff is entitled to get half share of the
plaint schedule properties.
4. The 1st defendant did not dispute the contention that the plaint
schedule properties belonged to the parents of the plaintiff and
the 1st defendant. The defendant resisted the suit on the
strength of Ext.B1 unregistered Will dated 26.10.1981 claiming
that the said Will is executed by the father and mother
bequeathing the plaint schedule properties in favour of the 1st
defendant, by contending that as per the covenants of Ext.B1
Will, the 1st defendant has to pay Rs.10,000/- to the plaintiff and
the same could not be paid due to paucity of funds and that the
1st defendant paid an amount of Rs.1,000/- to the daughter of
the plaintiff as per Ext.B2 Receipt dated 15.10.1989 as per the
covenants in the Will. The 1st defendant contended also that
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the plaintiff was given 'Sthreedhanam' by father at the time of
her marriage in lieu of her share in the plaint schedule properties
and hence she is not entitled to get any share in the plaint
schedule property under the Travancore Christian Succession
Act.
5. During the pendency of the suit, the 1st defendant filed O.S
No.2/1992 before the District Court, North Paravoor for getting
probate of Ext.B1 Will. The Trial Court decreed the suit as per
judgment dated 24.03.1997, passing Preliminary Decree for
partition subject to the decision in O.S No.2/1992. The District
Court, North Paravoor, dismissed O.S. No.2/1992 as per
judgment dated 13.09.1999, holding that in view of the
amendment in the Indian Succession Act, probation of Ext.B1
Will is not required. The 1st defendant filed A.S No.131/1997
challenging the Preliminary Decree passed by the Trial Cout on
24.03.1997, and the First Appellate Court set aside the
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judgment passed by the Trial Court and remanded the suit for
fresh disposal in accordance with law as per judgment dated
12.12.2002 taking note of the decision in O.S No. 2/1992. The
plaintiff filed FAO No.21/2003 before this Court challenging the
remand order and the same was dismissed by this Court as per
judgment dated 22.09.2003. Thereafter the Trial court
dismissed the suit as per judgment dt. 12.02.2004 holding that
the plaint schedule properties are not partible and the plaintiff is
not entitled to get share and mesne profits from the plaint
schedule properties as the 1st defendant has proved that he
obtained the plaint schedule properties of the parents as per
Ext.B1 Will. The plaintiff filed A.S No. 50/2007 before the First
Appellate Court challenging the judgment and decree of the
Trial Court. In A.S No. 50/2007, the plaintiff filed I.A
No.527/2007 to accept Sale Deed No.4870/1979 dt.12.11.1979
executed by the father of the parties, as additional evidence in
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the appeal and I.A No. 304/2007 for sending Ext.B1 Will and the
said Sale Deed for expert opinion for comparing the signature
of the father in Ext.B1 Will with the signature in the said sale
deed. The First Appellate Court dismissed both the Applications
by a common order dated 13.07.2007. The plaintiff challenged
the said order in WP(C) No.23823/2007 in this Court and this
Court disposed of the said writ petition by judgment dated
26.09.2007 setting aside the order under challenge and
restoring the Application to receive documents and directing the
First Appellate Court to consider the acceptability or otherwise
of the document under Order 41 Rule 27 CPC along with appeal
in accordance with law. Thereafter the First Appellate Court
dismissed both the said I.As, by a common order and dismissed
A.S.No. 50/2007 by judgment dated 25.02.2008. The plaintiff
filed R.S.A No.1274/2008 in this Court and this Court by
judgment dt. 21.12.2016 set aside the judgment of the First
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Appellate Court dt 25.02.2008 and remanded the matter back
to the First Appellate Court for fresh consideration finding that
the First Appellate Court did not comply with the direction of this
Court in the judgment dt. 26.09.2007 in W.P(C) No.23823/2007.
Thereafter the plaintiff filed I.A No. 631/2017 also, for
summoning the registration copy of the Sale deed No.
4870/1979 of the Sub Registry Office, as the Court found that
some changes were made in the signature of the father in Sale
deed No. 4870/1979. The First Appellate Court heard I.A No.
304/2007, I.A No 527/2007 and I.A No. 631/2017 along with the
appeal and all the I.As were allowed passing separate orders.
Consequent to the order in I.A NO. 527/2007 Sale Deed No.
4870/1979 was marked as Ext.A5. Thereafter, the First
Appellate Court passed the impugned judgment dt 15.12.2017
setting aside the judgment and decree passed by the Trial Court
and remanding the matter back to the Trial Court to summon the
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document mentioned in I.A No. 631/2017 and send Ext.B1 Will
to the expert for expert opinion in view of the orders allowing I.A
Nos. 527/2007, 304/207 and 631/2017. This appeal is filed by
the 1st defendant challenging the said remand order passed by
the First Appellate Court.
6. This Court admitted the appeal on 30.01.2018 without
formulating substantial question of law as required by law. Even
though notices were served to the respondent, nobody
appeared for the respondent. This Court heard the learned
Senior Counsel Sri. S Sreekumar, instructed by Adv. Sri.
P.Martin Jose for the appellant. In view of the arguments
addressed before this Court, the following substantial questions
of law were formulated as per order dated 05/06/2025.
1. Whether the First Appellate Court has correctly exercised its
jurisdiction under Order 41 Rule 27 CPC while allowing I.A
No.527/2007?
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2. Whether the First Appellate Court was right in allowing I.A
No.304/2007 without considering the pleadings and evidence
already on record to prove Ext.B1 Will?
3. Whether the First Appellate Court was right in allowing I.A No.
304/2007 when the signature of the father of the plaintiff and the
1st defendant in Ext.B1 is not specifically denied by the plaintiff?
7. After formulating the aforesaid substantial questions of law, the
appeal was adjourned in order to enable the parties to address
arguments on the substantial questions of law formulated. The
appeal was heard further.
8. The learned Senior Counsel for the appellant contended that I.A
No. 304/2007 filed by the plaintiff before the Appellate Court to
send Ext.B1 Will for expert opinion was not available for
consideration before the First Appellate Court while passing the
impugned judgment. I.A.No. 304/2007 was dismissed by the
First Appellate Court along with I.A No.527/2007 to accept
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additional evidence as per the order dated 13.07.2007. The said
order was challenged before this Court by filing WP(C) No.
23823/2007 and in the judgment dated 26.09.2007, this Court
has restored only the Application to receive the document and
directed the Appellate Court to consider the said Application
alone. It would indicate that this Court has not interfered with
the order dismissing I.A No. 304/2007. While remanding the
matter back to the First Appellate Court in R.S.A No. 1274/2008
as per the judgment dated 21.12.2016, this Court has directed
the First Appellate Court to consider I.A No. 527/2007 alone.
Nothing is stated or directed with respect to I.A No. 304/2007
since the order dated 13.07.2007 dismissing it had become
final. Hence, the First Appellate Court illegally considered I.A
No. 304/2007 again and passed order thereon. The matter was
remanded back to the Trial Court only for the reason that the
prayer for sending Ext.B1 Will for expert opinion is allowed as
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per I.A No. 304/2007. Since the order in I.A No. 304/2007 is
illegal, the order remanding the matter back to the Trial Court is
unsustainable and is liable to be set aside. The learned Senior
Counsel cited the decision of the Hon'ble Supreme Court in
Meena Pradhan and others v. Kamla Pradhan and another
[(2023) 9 SCC 734] to substantiate the nature of proof required
for proving Will and to illustrate the suspicious circumstances
for doubting the genuineness of the Will. The learned Senior
Counsel pointed out that when the 1st defendant filed Written
statement raising a defence on the strength of Ext.B1 Will, the
plaintiff did not file any Replication denying the execution of
Ext.B1 Will. The 1st defendant examined DW1 and DW4 who
are the attesting witnesses to prove the execution of Ext.B1 Will.
DW1 and DW4 are cousin brothers of the parties. The payment
of Rs.1,000/- to Mary, daughter of the plaintiff, as per the
covenants of Ext.B1 Will is proved by Ext.B2 receipt issued by
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Mary by examining DW 5, husband of Mary. The Vicar of the
Church was examined as DW3 to prove Ext.B3 to prove the
payment of Sthreedhanam to the plaintiff. The execution of
Ext.B1 Will is sufficiently proved by the 1st defendant who is the
propounder of the Will, by examining two attesting witnesses
and there is nothing in their evidence to discredit them. Not even
a suggestion was put to them that Ext.B1 is not signed by the
father or that the signature in Ext.B1 does not belong to the
father of the parties. When Ext.B1 was put to the plaintiff when
she was examined as PW1, she did not dispute the signature of
the father. The plaintiff is now disputing the signature of the
father alone in Ext.B1 and she does not dispute the signature of
the mother in Ext.B1 for sending the said document for expert
opinion. The First Appellate Court acted illegally in allowing the
prayer of the plaintiff to send Ext.B1 for expert opinion without
considering the evidence already on record. The learned Senior
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counsel concluded his argument praying to answer the
substantial questions of law in favour of the appellant and to
allow the appeal setting aside the judgment and decree passed
by the First Appellate Court and restoring the judgment passed
by the Trial Court.
9. The sole question that arises in this appeal is whether the First
Appellate Court is justified in allowing I.A.No.304/2007 for
sending Ext.B1 Will for expert opinion for comparison of the
signature of the father with Ext.A5 Sale Deed. Sale Deed
No.4870/1979 was marked in evidence as Ext.A5 allowing
I.A.No.527/2007 for the sole purpose of sending it along with
Ext.B1 as it contains the admitted signature of the father. The
need for allowing I.A.No.527/2007 arises only if the Court
decides to allow I.A.No.304/2007 for sending Ext.B1 Will for
expert opinion.
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10. I am not impressed by the argument of the learned Senior
Counsel that I.A.No.304/2007 was not available before the First
Appellate Court for consideration while considering the appeal
as the same was dismissed as early as on 13/07/2007 and it
has become final. In W.P(C) No. 23823/2007, this Court
considered the legality of the common order passed on
13/07/2007 dismissing I.A.No.304/2007 and 527/2007 and this
Court set the order under challenge in the judgment in W.P(C)
No. 23823/2007. Merely because the Application to receive the
document alone was restored, it could not be said that the order
dismissing I.A.No.304/2007 was not set aside. It is only an
omission to restore I.A.No.304/2007. When the Order
dismissing I.A.No.304/2007 is also set aside, I.A.No.304/2007
is impliedly restored. This Court remanded the matter back to
the First Appellate Court as per the judgment in R.S.A
No.1274/2008 finding that direction in the judgment in W.P(C)
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No. 23823/2007 is not complied with. Then the remand is for
consideration of both I.A.No.304/2007 and I.A.No.527/2007.
Another reason is that no purpose would be served by
considering I.A.No.527/2007 without considering
I.A.No.304/2007 as the reliefs are interlinked. Hence, the First
Appellate Court is fully justified in considering I.A.No.304/2007
along with I.A.No.527/2007.
11. Then comes to the prime question whether the plaintiff has
made out any case for sending Ext.B1 for expert opinion for
comparing the signature of the father with his admitted
signature. The plaintiff can seek to send Ext.B1 Will for expert
opinion for verifying the signature of the father, only if she has
denied the signature of the father in Ext.B1. While allowing I.A
NO. 304/2007, the First Appellate Court did not conduct an
enquiry whether the plaintiff had denied the signature of the
father in Ext.B1. The First respondent in his Written Statement
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has stated that the father and mother executed Ext.B1 Will with
respect to the plaint schedule properties in favour of him. In the
Written Statement of the 2nd and 3rd defendants, they have
stated that they purchased the plaint schedule item No.5
property having 42 cents from the 1st defendant and mother as
per Sale Deed No. 1704/1988. The plaintiff did not file any
pleading with respect to Ext.B1 Will. In the Proof Affidavit of the
plaintiff, she has only stated that Ext.B1 is falsely created by the
1st defendant and it is not created by father or mother. When she
was cross-examined, Ext.B1 was specifically put to her and
asked as to the signatures contained in Ext.B1 Will and she
pleaded ignorance. Neither in the Proof Affidavit nor in the
cross-examination, the plaintiff did not deny the signature of the
father in Ext.B1. The plaintiff examined DW1 and DW4, who are
the attesting witnesses to prove the execution of Ext.B1 Will.
Though those witnesses were extensively cross-examined by
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the plaintiff there is nothing to discredit their testimony. Only a
suggestion was put to them by the plaintiff that Ext.B1 Will is
forged by the 1st defendant and the witnesses. No suggestion
was put to them that the signatures in Ext.B1 do not belong to
the father. Hence, I am of the view that there is no denial of
signature of the father in Ext.B1 by the plaintiff before the Trial
Court. The plaintiff filed I.A No.304/2007 before the First
Appellate Court for sending Ext.B1 for expert opinion for
comparing the signature of the father with the admitted
signature. In the said Application only, the plaintiff has alleged
that the signatures in Ext.B1 Will do not belong to the father.
There also, she has not denied the signature of the mother. She
sought to compare the signature of the father with the signature
in document No.4870/1979 executed by the father. The plaintiff
filed I.A No.527/2007 before the First Appellate Court to receive
document No. 4870/1979 invoking Order 41 Rule 27 CPC. It is
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seen that I.A No.304/2007 was filed on 10.03.2005 and the
same was originally numbered as I.A No.1069/2010 and was
later renumbered as I.A No. 304/2007. I.A No. 527/2007 is filed
on 10.07.2007. Order 47 Rule 27 CPC provides that the party
seeking to produce additional evidence shall establish that
notwithstanding the exercise of the due diligence the additional
evidence sought to be accepted was not within his knowledge
or could not after the exercise of due diligence be produced by
him at the time when the decree appealed against was passed.
The only statement in I.A No. 527/2007 is that the existence of
the sale deed No.4870/1979 came to the knowledge of the
plaintiff recently. Such an averment is not sufficient to receive
document No.4870/2007 as additional evidence. The plaintiff
did not think of disputing the signature of the father in Ext.B1
and to seek expert opinion with respect to the signature of the
father in Ext.B1 when the suit was pending before the Trial
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Court. She thought of disputing the signature only when the
matter was pending before the First Appellate Court. She had
sufficient opportunity to dispute the signature of the father in
Ext.B1 while the suit was pending before the Trial Court. She
had sufficient opportunity to procure the documents, admittedly
containing the signatures of the father. She did not attempt to
do that. She cannot seek acceptance of Document No.
4870/1979 as additional evidence in I.A No. 527/2007 since she
has not proved the conditions under Order 41 Rule 27 CPC.
That apart, the fate of I.A No.527/2007 depends upon the fate
of I.A No. 304/2007. Only if I.A.No.304/2007 is allowed, the
question of consideration of I.A.No.527/2007 arises. Since the
plaintiff did not deny the signature of the father either in the
pleadings or in evidence, the plaintiff has no right to seek to
send the signature in Ext.B1 Will for comparison by an expert.
The plaintiff filed I.A No. 631/2017 for summoning the
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registration copy of document No.4870/1979 from the Sub
Registry Office, Perumbavoor on the ground that changes were
seen made in the signatures in Document No.4870/1979. The
question of summoning the registration copy of the Document
No. 4870/1979 arises only if I.A No. 304/2007 is allowed. Since
plaintiff is not entitled to succeed in I.A No. 304/2007, I.A No.
527/2007 and I.A No. 631/2017 are liable to be dismissed. The
First Appellate Court acted illegally in allowing I.A
Nos.304/2007, 527/2007 and 631/2017. The orders allowing
those I.As are unsustainable. The First Appellate Court
remanded the matter back to the Trial Court only for the purpose
of sending Ext.B1 for expert opinion as the above three I.As are
allowed. Since I found that the orders allowing those
applications are liable to be set aside, there is no need to
remand the matter back to the Trial Court.
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12. In the absence of denial of the signature of the father in
Ext.B1 by the plaintiff, the First Appellate Court acted illegally in
considering whether there are suspicious circumstances with
respect to the execution of Ext.B1 Will for the purpose of
sending the same for expert opinion. The First Appellate Court
failed to consider the evidence of unshaken evidence of DW1
and DW4, who are the attestors to Ext.B1 Will. The evidence of
DW1 and DW4 is sufficient to hold that the first
defendant/propounder has proved the execution of Ext.B1 Will
as required under Section 63(c) of the Indian Succession Act.
13. In view of the aforesaid discussion and findings, I answer
all the Substantial Questions of Law in the negative and in
favour of the appellant. In view of the answers to the Substantial
Questions of Law, this appeal is allowed without costs setting
aside the judgment and decree passed by the First Appellate
Court dated 15.12.2017 including the Orders dated 15.12.2017
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in I.A Nos.304/2007, 527/2007 and 631/2017 therein and
restoring the judgment and decree passed by the Trial Court
dated 12.02.2004 in O.S No. 50/1991.
Sd/-
M.A.ABDUL HAKHIM
JUDGE
Jma/shg
