IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE V.K. MOHANAN FRIDAY, THE 20TH JUNE 2008 / 30TH JYAISHTA 1930 AFA.No. 3 OF 2001 AS.591/1993 OF THIS COURT OS.21/1984 OF SUB COURT, TIRUR APPELLANTS/RESPONDENTS 1 TO 4/PLAINTIFFS 2 TO 5: 1. VAYYAPINATT KIZHAKKEPATT THALEKKAT KALATHIL BHARGAVI KOVIl, D/O. DEVAKI KOVIL, RESIDING AT PERASSANUR AMSOM, KUTTIPURAM DESOM, P.O. PARASANNUR, MALAPPURAM DISTRICT. 2. DO. UNNIKRISHNANUNNI, S/O. BHARGAVI KOVIL, OF DO. DO. 3. DO. RADHAKRISHNANUNNI, S/O. BHARGAVI KOVIL, OF DO.DO. 4. DO. MOHANANUNI, S/O. BHARGAVI KOVIL OF DO. DO.DO BY ADV. SRI.P.G.RAJAGOPALAN RESPONDENTS/1ST APPELLANT & R 5, 6,8,9 & 11 TO 19/DEFTS. 1 TO 3, 6,7,9 TO 16 & LRS OF D8: 1. MARAYATH RAMACHANDRAN NAIR, S/O. NARAYANI AMMA, 29/396, KUNNATH MANA LANE, THRISSUR, THRISSUR DISTRICT. (DIED. L.RS IMPLEADED) 2. CHELLANATT SARADA AMMA, D/O. MARAYATH DAMODHARAN NAIR, VIJAYAMANDIRAM, PERASSANNUR DESOM, KUTTIPURAM AMSOM, P.O. PERASSANUR, MALAPPURAM DISTRICT. 3. SON VIJAYA GOVINDAN, OF DO.DO. 4. RAGHURAMAN, S/O. KAMALAKSHI AMMA, PUTHENPURA HOUSE, KUTTIPURAM AMSOM DESOM, P.O. KUTTIPURAM, MALAPPURAM DISTRICT; 5. SHYLAJA, D/O. KAMALAKSHI AMMA OF DO.DO. 6. KUTTIPURAM MAHILA SAMAJAM, REPRESENTED BY THE SECRETARY, KUTTIPURAM. 7. GOVINDAN NAMBIAR, S/O. THEKKAMUTHEDATH KALIKOVILLAMMA, MOOTHEDATH HOUSE, P.O. KUTTIPURAM, MALAPPURAM DISTRICT. 8. PARAKULANGARA VENUGOPALA MENON, S/O. MEENAKSHI AMMA, MOHAN VILAS, POOKAUIL BAZAR, P.O. TIRUR, MALAPPURAM DISTRICT. A.F.A. 3/2001 :2: 9. ITHIRU ALIAS CHINNAMMU AMMA , W/O. KARATHATTIL SANKUNNI MENON OF DO.DO. 10. DO.KUNHIMALU AMMA, OF DO.DO. 11. KARUTHATTIL BALAMANI AMMA, W/O.. LATE PARAKULANGARA RAMANKUTTY MENON OF DO.DO. 12. SON, KARUTHATTIL RAM MOHAN, (WRONGLY SHOWN AS RAMACHANDRAN), ADVOCATE OF DO.DO. 13. U.N. SUMANGALA, W/O.. LATE ACHUTHAN, KUTTIPURAM AMSOM DESOM, P.O. KUTTIPURAM, MALAPPURAM DISTRICT. 14. ARUPAMA (MINOR) REPRESENTED BY GUARDIAN AND NEXT FRIEND MOTHER U.N. SUMANGALA, OF DO. DO. (13TH RESPONDENT) SUPPLEMENTAL RESPONDDNTS : 15 THANKAM RAMACHANDRAN, NEELANJANAM, NAGAMALIKAPURAM, KOTTAPPURAM, THRISSUR DISTRICT. 16. DR. RADHIKA OF DO.DO. 17. RENUKA OF DO.DO. (SUPPLEMENTAL RESPONDENTS 15 TO 17 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF THE DECEASED FIRST RESPONDENT AS PER ORDER DATED 25.5.2005 IN I.A. 1353/2005.) ADV. SRI.V.CHITAMBARESH (SR.) FOR R4 & R5 ADV. SRI.T.R.RAVI FOR R1 ADVS. SRI.THOMAS ABRAHAM, SRI.K.B.ARUNKUMAR, SRI.HARIDAS & SRI.T.KRISHNAN UNNI (SR.) FOR R13 & R14 SRI.T.KRISHNAN UNNI (SR.) FOR ADDL.R 15 TO R17 SRI.T.C.SURESH MENON SRI.JIBU P THOMAS & SRI.P.S.APPU FOR R.4,5 THIS APPEAL FROM FIRST APPEAL HAVING BEEN FINALLY HEARD ON 12.3.2008, ALONG WITH AFA NO. 4 OF 2001 AFA NO. 5 OF 2001 THE COURT ON 20/06/2008, DELIVERED THE FOLLOWING: P.R. RAMAN & V. K. MOHANAN, JJ. = = = = = = = = = = = = = = = = = = = = A.F.A. NOS. 3, 4 & 5 OF 2001 = = = = = = = = = = = = = = = = = DATED THIS, THE 20TH DAY OF JUNE, 2008. J U D G M E N T Raman, J. All the above appeals arise out of the common judgment rendered by the learned Single Judge. A.F.A. 3/2001 is preferred against the judgment and decree passed in A.S. 591/1993 and Cross Objection, AFA 4/2001 arises out of A.S. 931/1997 and AFA 5/2001 arises out of the judgment and decree in A.S. 590 and 652/1993 and A.S. 212/1994. The appellants in A.F.A. 3/2001 are the plaintiffs 2 to 5 in O.S. 21/1984 and the appellants in A.F.A. 4/2001 are defendants 1, 4, 5 and 8 in O.S. 81/1987. The appellants in A.F.A. 5/2001 are the plaintiffs 2 to 5 and the legal heirs of the first defendant in O.S. 23/1984. 2. O.S. 21/1984 is a suit for partition filed by one Karunakara Menon as the sole legal representative of his wife Karthiayani Amma. Supplemental plaintiffs 2 to 5 were brought on record on the strength of assignment Ext.A24 executed by Karunakara Menon, dated 27.9.1985. O.S. 23/1984 was also filed by the said Karunakara Menon for recovery of possession of property and O.S. 81/1987 was filed by one Ramachandran AFA NOS. 3,4 & 5/2001 :2: Nair and others for injunction and recovery of possession of suit property on the strength of title. The trial court passed a preliminary decree for partition in O.S. 21/1984. O.S. 23/1984 which was filed for recovery of possession was also decreed in favour of the plaintiffs and consequently, O.S. 81/1987 was dismissed. Virtually, the contesting defendants in O.S. Nos. 21/1984 and 23/1984 are the plaintiffs in O.S. 81/1987. The suit property in O.S. 21/1984 is H schedule item of a partition deed dated 23.9.1959. 3. Plaint A schedule property in O.S. 81/1987 are items 1 to 6 of H schedule in Ext.B1 partition deed. Plaint A and B schedule properties in O.S. 23/1984 are E schedule items of Ext.B1 partition deed. B schedule items are stated to be in the possession of tenants. Plaint E schedule of Ext. B1 partition deed was allotted to Karthiayani Amma exclusively and H schedule in Ext. B1 partition deed was allotted to Karthiyani Amma along with others in group excluding Sivaramakrishnan Nair. Thus, partition is sought in respect of H schedule and recovery is sought for in respect of E schedule. Karthiayani Amma executed a Will Ext. B17 dated 9.1.1973. She died on 17.4.1973. As per Ext.B17, she bequeathed the rights over the properties allotted to her in the partition in favour of Ramachandran Nair, one of her brothers and this Ramachandran Nair is the 3rd defendant in O.S. AFA NOS. 3,4 & 5/2001 :3: 21/1984 and second defendant in O.S. 23/1984. Ramachandran Nair claims that he is the sole legatee under Ext.B17. Karunakara Menon, the husband of Karthiayani Amma was her sole legal heir who was alive at the time of Ext. B17 as also at the time of her death. Karunakara Menon died in 1985 after the institution of the suit. Before his death he assigned his rights over the plaint schedule properties to the supplemental plaintiffs in the respective suits. Based on the Will Ext. B17, Ramachandran Nair assigned some of the properties and the assignees are Defendants 3 to 5, 7 to 9 and 16 to 24 in O.S. 23/1984. 4. As against the preliminary decree passed in O.S. 21/1984, the contesting defendants filed A.S. 591/1993 in which a cross objection was filed by Defendants 5,6 and 7 seeking larger share. Defendants 1 and 2 in O.S. 23/1984 filed A.S. 590/1993. In the same suit, defendants 3 to 24 have filed A.S. 212/1994. Plaintiffs in that suit filed A.S. 652 of 1993 questioning the value of improvements fixed thereon. Plaintiffs in O.S. 81/1987 filed A.S. 931/1997. All the first appeals and cross objections were disposed of by a common judgment by the learned Single Judge. Since these appeals have been preferred against the common judgment rendered in those appeals, we dispose of them by this common judgment. 5. The main dispute centers round the genuineness of Ext. B17 Will. AFA NOS. 3,4 & 5/2001 :4: The trial court found that the Will is not genuine which is the basis for decreeing the suits O.S. 21 and 23 of 1984. The learned Single Judge held that the Will Ext. B17 set up by Ramachandran Nair is valid and genuine and it was held that H schedule items in Ext. B1 were treated as separate property allotted in common to eight members and not treated as tavazhi property. The decree of the court below was modified and A.S. 591/1993 was allowed by passing a preliminary decree in O.S. 21/1984 for partition and separate possession, allotting two shares to 3rd defendant, one share to 4th defendant and 5 shares to defendants 5,6 and 7. A.S. 590/1993 and A.S. 212/1994 were allowed and A.S. 652/1993 and cross objections in A.S. 591/1993 were dismissed. Consequently, O.S. 23/1984 on the file of the Sub Court, Tirur stood dismissed. A.S. 931/1997 was allowed by decreeing the suit O.S. 81/1987 on the file of the Sub Court, Tirur. 6. The learned counsel Sri. Rajagopalan, appearing on behalf of the appellants in the above appeals contended as follows: Ext. B17 Will is not genuine and there are suspicious circumstances regarding the dis- inheritance of the husband by the testator. The two attestors and the scribe were brought down from Tirur, 15 kms. away from Kuttippuram where the Will was allegedly executed. The testator was terminally ill on account of cancer who was discharged from the hospital at Madras as a hopeless case AFA NOS. 3,4 & 5/2001 :5: and as on the date on which the Will was executed, she was in a Nursing home at Tirur. Though it was contended that Ramachandran Nair, who was examined as DW.1, was the favourite brother of the testator which is stated to be a reason for executing the Will in his favour, there is no evidence to that effect. The plaintiff Karunakara Menon alleged that the Will was a forged one and the trial court had compared the signature in the Will with the admitted signature of Karthiayani Amma and held that the signature does not tally, which should not have been interfered with by the learned Single Judge. Even though this Court held that such a comparison would not have been done, the learned Single Judge has ultimately compared the signature for upholding the Will. The place of assignment/execution is conspicuously absent in the Will Ext. B17. 7. The learned counsel also took us to the evidence of DW.2, DW.3 and DW4 in support of these contentions. He also attacked the finding based on Ext. B28 - a diary of Damodaran Nair (the brother of the testator and legatee) inter alia contending that no reliance could be placed on the same since according to him, it has no probative value and it is not kept in the usual course of business. 8. Sri. R.D. Shenoy and Sri. Krishnan Unni,learned Senior counsel appearing for the contesting respondents, on the other hand, supported the AFA NOS. 3,4 & 5/2001 :6: judgment of the learned Single Judge. According to the learned Senior counsel Sri. Krishnan Unni, after the purchase of the undivided share from Karunakara Menon as the sole legal heir, Sivaramakrishnan, his wife and children became co-sharers which necessitated the filing of O.S. 81/1987. According to him, Ramachandran Nair, the legatee had instituted O.S. 186/1973 before the Munsiff's Court, Tirur, against his elder brother Damodaran Nair which was a suit for injunction in respect of an item in E schedule. Exts. B2 to B5 would show that the said suit was ultimately settled and Ext. B17 Will was produced in the said case as document No.1. Therefore, he contended that the allegation that Ext. B17 Will was produced for the first time in the present suit without divulging it earlier is an unfounded allegation as the Will was produced even in an earlier suit of the year 1973. It is also his contention that Ramachandran Nair, as the legatee under the Will, had assigned various items of properties as per Ext.B6, B9, B10, B11, B13, B14 and B15 which were all transfers in favour of strangers based on the Will and they were also put in possession. Ext. B6 is of the year 1978. Exts. B9 and Ext. B10 are of the year 1979 and the other documents are of the years 1982, 1983 etc. According to him, the plaintiffs were well aware of those assignments and they were dealing with the property as though Ramachandran Nair is the legatee AFA NOS. 3,4 & 5/2001 :7: entitled to the property and despite these, the suit was filed only in the year 1984, several years after those assignments, after winning over Karunakara Menon. According to him, the plaint averments itself would admit the fact that Sivaramakrishnan and Rugmini Amma were in possession and Sivaramakrishnan died only on 9.8.1983 and after his death his wife and children continued to reside in the building which necessitated the filing of the suit O.S. 81/1987. The suit O.S. 81/1987 was originally filed as O.S. 154/1983 before the Munsiff's Court, Tirur which was later transferred to the Sub Court and re-numbered as O.S. 81/1987. It is only later that the other two suits were filed by the plaintiffs seeking partition and setting up contentions against the Will. According to him, it was Damodaran Nair who was managing the properties and in 1973 he transferred his right to one of his sisters and left management. Though Sivaramakrishnan Nair was not allotted any property as per Ext.B1 he was put in management and he and his wife started residing at Melepattu tharvad which is item No.1 in B schedule. It was after the death of Sivaramakrishnan Nair in 1983 that his children continued to reside therein and in spite of requests made to vacate the premises they did not do so which necessitated the filing of O.S. 154/1983 before the Munsiff's court, Tirur. Later, as stated earlier, the said suit was transferred to the Sub Court, Thirur and re-numbered as O.S. AFA NOS. 3,4 & 5/2001 :8: 81/1987. It is as a counter blast to this, that O.S. 21/1984 was filed for partition and the other suit O.S. 23/1984 for an injunction, by Karunakara Menon. It is after one year of filing the suit that Karunakara Menon transferred his rights in favour of the supplemental defendants/plaintiffs by Ext.A24 document dated 24.9.1985 and in 1986 when Karunakara Menon died these supplemental defendants came on record as assignees. According to him, even after production of the Will there was no dispute with regard to the signature and if as a matter of fact, the witness had come from Tirur and he was believable, the question as to why they came from Tirur becomes irrelevant. He also referred to the deposition of DW1 , DW2, DW3 and DW4 in answer to the contentions raised by the appellants. He also laid emphasis on the certification made in Ext. B17 by the attester. He also contended that there is nothing wrong in accepting Ext. B28 diary since the words " in the ordinary course of business" is to be given a wider meaning. Ext. B28 is a diary maintained by Damodaran Nair and his wife is a party in the partition suit and it was with noticie to her that the diary was marked in the case. Various entries in Ext. B28 would clearly show that Karthiayani Amma was not in any hospital on the date on which the Will was executed and there is no suspicious circumstances as alleged by the plaintiff. AFA NOS. 3,4 & 5/2001 :9: 9. Learned counsel Sri. R.D. Shenoy placed reliance on the deposition of DWs 1 and 2 and contended that even according to DW1, Karthiayani Amma was in Madras and she was brought back on 8.1.1973 and Ext. B17 was executed on 9.1.1973. In the absence of any contra evidence the presumption is that the document was executed on the date it bears. The burden is on the person who disputes the date of execution to show that the document was executed on a date other than the date shown on it and they have not discharged their burden. According to him, the mere fact that the normal line of succession is interfered with and the husband was disinherited in no way will affect the genuineness of the Will since the Will is to alter the mode of normal succession and if a person intends to pass on the property to the natural heir, there is no need for executing a Will. Thus, the fact that natural line of succession was disrupted is not a suspicious circumstance at all. It was contended that the testator did not want the property to go to another family and the parties were following the marumakkathayam law of succession until replaced by the Hindu Succession Act, 1956. In 1959 when the partition took place the parties ensured that the properties shall not go to anyone outside the marumakkathayam family. Since Karunakara Menon and Karthiayani Amma had no issues naturally, after the death of Karunakara Menon, the AFA NOS. 3,4 & 5/2001 :10: property would have reached the hands of his brothers who were outside the thavazhi of Karthiayani Amma and this is perhaps the reason which induced Karthiayani Amma to execute the Will, so that the line of succession is not disrupted. 10. Learned counsel Sri. V. Chidambaresh, appearing on behalf of Defendants 6 and 7 contended that the reservation in favour of his clients may not be interfered with as the appellate court itself has not thought it fit to do so and generally supported the contention of the contesting respondents. 11. We may now advert to the pleadings made by the parties. As per the plaint allegations in O.S. 21/1984, plaint A schedule property was allotted to the share of deceased Karthiayani Amma and others as per the partition deed No. 1256/1959, which is Ext.B1 produced in the case. Plaint A schedule was the property allotted to the share of Karthiayani Amma, her brothers Damodaran Nair, Ramachandran Nair, Rugmini Amma, Parukutty Amma and Kamalakshi Amma. Kamalakshi Amma is the daughter of Parukutty Amma. Raghuraman and Ramadevi are the children of Kamalakshy Amma. Plaint B schedule are the movable properties kept in the building situated at items 1 to 4 and 7 of A schedule property. Plaint A schedule situates at Perasannur and item Nos. 7 to 10 AFA NOS. 3,4 & 5/2001 :11: situate at Kuttipuram. According to the plaintiffs Karthiayani Amma expired without leaving behind any children, father or mother. She did not execute any testamentary disposition. So, after the death of Karthiayani Amma, first plaintiff Karunakara Menon became her sole surviving heir. He shifted his residence from Kuttippuram to Kozhikode after entrusting E schedule property, which is the exclusive property allotted to Karthiayani Amma as per Ext. B1 partition deed, for management to defendants 3 and 4 and they were managing E schedule property and H schedule property of the partition deed. Since the defendants did not hand over management even on requests made by the plaintiff, they issued a notice to which defendants sent a reply contending that Karthiayani Amma had executed a Will on 9.1.1973 bequeathing all her properties in favour of the third defendant who got possession and ownership of the property left behind Karthiayani Amma. But according to the plaintiffs no such Will was executed by Karthiayani Amma and there was also no reason to execute such a Will excluding Karunakara Menon from inheriting her properties. The marriage of Karthiayani Amma and Karunakara Menon was in the year 1950 and thereafter, the first plaintiff was usually going to the residence of Karthiayani Amma at Kuttippuram and after his retirement in 1968 he was residing with Karthiayani Amma. Karthiayani Amma was suffering AFA NOS. 3,4 & 5/2001 :12: from uterus cancer which was not disclosed to her and it is the first plaintiff who took her to various hospitals at Tirur, Trichur, Kozhikode, Madras etc. at his own expenses. Since her health condition did not improve Karthiayani Amma was taken from the hospital at Madras to her residence at Kuttippuram in January, 1973 and again she was taken to Tirur Nursing Home by the first plaintiff and later, to the Medical College Hospital, Kozhikode. But her health condition did not improve and she was taken back to her residence at Kuttippuram and she expired on 17.4.1973. It was the first plaintiff who treated Karthiayani Amma by spending his own funds. During that period she was not in a position to understand the nature of the acts done by her and she was mentally and physically unable to understand the things she was doing. The Will alleged is a fabricated document in order to snatch away the properties of Karthiayani Amma. After the institution of the suit, Karunakara Menon died as noticed earlier. The second plaintiff purchased the property of Karunakara Memon on 27.9.1985 alleged to be for full consideration with bona fide intention. Subsequently, plaintiffs 2, 3 and 4 entered into a partition and the plaint schedule properties were allotted to the share of plaintiffs 3,4 and 5. The legal heirs of Karunakara Menon were impleaded as supplemental defendants 11 to 14. They have no right on the plaint AFA NOS. 3,4 & 5/2001 :13: schedule property. Plaintiffs are entitled to 2/16 share of the properties by metes and bounds. 12. Defendants 3 and 4 in their written statement contended that the suit is not maintainable, that plaint B schedule is not available for partition as they are not properties belonging to Karthiayani Amma and others, that the averment that Karunakara Menon was looking after the affairs of Karthiayani Amma is wrong, that Karunakara Menon and Karthiayani Amma did not reside at Kuttippuram togethehr, that Karthiayani Amma and others got H schedule property as per the partition deed, that husband and wife relationship between Karunakara Menon and Karthiayani Amma was only nominal, that actually Karthiayani Amma was looked after by her brothers , that she was in intimate terms with the 3rd defendant who received all affection from her more than that of a brother, that Damodaran Nair - the other brother of Karthiayani Amma married the sister of Karunakara Menon who subsequently, in 1958 he divorced her, that because of this, Karunakara Menon and Karthiayani Amma were not on good terms, that Karthiayani Amma executed the will bequesting all her properties in favour of the third defendant on 9.1.1973 fully knowing the contents of the same and the Will was executed in the presence of witness, that after executing the Will Karthiayani Amma died on 17.4.1973, that the AFA NOS. 3,4 & 5/2001 :14: averment that the property was entrusted by Karunakara Menon with defendnants 3 and 4 is denied, that it is not correct to say that Karunakara Menon took Karthiayani Amma to various hospitals for treatment, that Karthiayani Amma was taken to Medical College Hospital, Kozhikode in February, 1973 by the 4th defendant and her brother Sivaramakrishnan, that it is not correct to say that Karthiayani Amma was physically and mentally not well, that she was physically and mentally sound, that the Will is not a fabricated one, that the same was executed with the intention to give the properties to the third defendant who was in intimate terms with Karthiayani Amma and that the plaintiff is not entitled to get any share in H schedule property. In their additional written statement they have also contended that in the event of partition, their share may be separately allotted. H schedule properties of the partition deed were allotted jointly to executant Nos. 1 and 3 to 9, that the executants have no right to alienate the property and even if it is seen that the will executed in favour of Ramachandran Nair is not genuine, the plaintiffs are not entitled to get any share in the plaint schedule properties. 13. Defendants 5 and 7 in their written statement would contend that H schedule is allotted to the thavazhi, that the after born children are entitled to inherit the properties, that the 7th defendant, who was born after AFA NOS. 3,4 & 5/2001 :15: the year 1959 is also entitled to get a share and that the 3rd defendant has to establish that Karthiayani Amma had executed a Will in his favour. The8th defendant would contend that he purchased the properties mentioned in the written statement by sale deed of the year 1983 by giving full consideration and with bonafide intention. 14. The suit O.S. 23/1984 is a suit for recovery of possession on the strength of title. The material allegations contained in the plaint are almost the same as that are contained in O.S. 21/1984 and it is not necessary to reiterate the same. Defendants 1 and 2 are respectively defendants 4 and 3 in O.S. 21/1984. They have raised the same contentions as contained in their written statement filed in O.S. 21/1984. The other defendants have also filed written statement raising similar contentions. The 6th defendant would contend that he purchased item No.11