IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 25TH MARCH 2011 / 4TH CHAITHRA 1933 RP.No. 1148 of 2010() --------------------- AGAINST THE JUDGEMENT IN AS.789/1997 .................... REVIEW PETITIONER/ APPELLANT IN AS NO.789/1997 ------------------------------------------------- M.P.DHARMA RATHNAM, AGED 73, RESIDING IN 20/83 KALLAI APARTMENTS, M.S.BABURAJ ROAD, KALLAI, CALICUT-673 003. BY ADV. M.P.DHARMA RATHNAM PARTY IN PERSON M.P.DHARMA RATHNAM (PARTY) RESPONDENTS/ DEFENDANTS IN AS NO.789/1997 ------------------------------------------- 1. M.E.RAMANUJAN, 69 YEARS, S/O.ROHINI, RESIDING AT "ROHINI NILAYAM", VAYALALAM POST, KOTTAYAM TALUK, THALASSERY. 2. M.E.PADMINI, 70 YEARS, D/O.ROHINI, RESIDING AT "ROHINI NILAYAM", VAYALALAM POST, KOTTAYAM TALUK, THALASSERY. 3. SUPPL. M.E.BALASANKARAN, 70 YEARS, RESIDING AT "ROHINI NILAYAM", VAYALALAM POST, KOTTAYAM TALUK, THALASSERY. 4. SUPPL. M.P.SOMA RATHNAM, 68 YEARS, RESIDING IN "SALEENA", CHUNGAM CROSS ROAD, CALICUT-5, EDAKKAD VILLAGE. 5. M.P.DIVYA RATHNAM, 60 YEARS, RESIDING IN "SALEENA", CHUNGAM CROSS ROAD, CALICUT-5, EDAKKAD VILLAGE. 6. M.P.RAJA RATHNAM, 57 YEARS, RESIDING IN "SALEENA", CHUNGAM CROSS ROAD, CALICUT-5, EDAKKAD VILLAGE. 7. M.P.PADMAJA, 69 YEARS, 'PADMA VILLA', ATHANIKKAL, PUTHIYANGADI VILLAGE, CALICUT-5. R.P.NO.1148/2010 8. PADMAVATHI BALASANKARAN, D/O.LATE M.E.BALASANKARAN, AGED 50 YEARS, RESIDING AT "ROHINI NILAYAM", VAYALALAM POST, KOTTAYAM TALUK, THALASSERY. 9. PADMASANKARI, AGED 35 YEARS, D/O.M.E.BALASANKARAN, RESIDING AT "ROHINI NILAYAM", VAYALALAM POST, KOTTAYAM TALUK, THALASSERY. 10. SREEKRISHNA, AGED 23 YEARS, S/O.M.E.BALASANKARAN, RESIDING AT "ROHINI NILAYAM", VAYALALAM POST, KOTTAYAM TALUK, THALASSERY. 11. SIVAN, AGED 19 YEARS, S/O.M.E.BALASANKARAN, RESIDING AT "ROHINI NILAYAM", VAYALALAM POST, KOTTAYAM TALUK, THALASSERY. 12. MEENAKSHI SOMAN, 71 YEARS, W/O.LATE M.P.SOMA RATHNAM, RESIDING IN 'SALEENA', CHUNGAM CROSS ROAD, CALICUT-5, EDAKKAD VILLAGE. 13. BASANTH SOMAN, AGED 47 YEARS, S/O.LATE M.P.SOMA RATHNAM, RESIDING IN 'SALEENA', CHUNGAM CROSS ROAD, CALICUT-5, EDAKKAD VILLAGE. 14. DAVINA JAYARAJ, AGED 42 YEARS, D/O.LATE M.P.SOMA RATHNAM, RESIDING IN 'SALEENA', CHUNGAM CROSS ROAD, CALICUT-5, EDAKKAD VILLAGE. THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 25/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: HARUN-UL-RASHID,J. ------------------------------- R.P. NO. 1148 OF 2010 IN A.S. NO.789 OF 1997 ------------------------------- DATED THIS THE 25TH DAY OF MARCH, 2011 O R D E R Review petitioner is the appellant in A.S.No.789/1997 on the file of this Court. He is the petitioner in O.P.No.114/1989, subsequently re-nmbered as O.S.No.10/1995 on the file of the District Court, Kozhikode. O.P.No.114/1989 was filed under Section 270 of the Indian Succession Act for grant of letter of Administration of the Will alleged to be the last Will and testament of the testator. The learned District Judge disbelieved the evidence adduced by the plaintiff and his witnesses examined as PWs.1 to 3 and held that the plaintiff has not proved by adducing satisfactory evidence that Ext.A2 Will is executed by the deceased and she had the testamentary capacity to execute the same, at the time it is alleged to have been executed. The learned Judge also held that the plaintiff has not been able to remove the suspicious circumstances -2- R.P.No.1148/2010 surrounding the execution of the Will. 2. The plaintiff preferred A.S.No789/1997 before this Court. This Court confirmed the decree and judgment of the trial court and dismissed the appeal. This Court followed the decision of the Apex Court in H.Venkatachala Iyengar v. B.N.Thimmajamma (AIR 1959 SC 443), disbelieved the evidence of PWs.1 to 3 and agreed with the findings recorded by the court below. The review petitioner appeared in person. He pointed out that the findings and conclusions arrived at by the trial court are not based on the materials on record. According to him, the materials on record are not appreciated erroneously, which led to the conclusion that the testator has not executed the Will while he was in sound disposing state of mind. It is submitted that wrong appreciation of facts, failure to place reliance on the facts and circumstances leading to the execution of the Will and in wrongly not placing reliance on the evidence tendered by the plaintiff and his witnesses erroneously led to the dismissal of the suit. The -3- R.P.No.1148/2010 review petitioner submits that the Appellate Court did not appreciate the facts and circumstances independently, followed the dictum laid down by the Apex Court in the decision referred to supra and confirmed the findings of the trial court. According to the review petitioner, by not placing reliance on the materials relied on by him, this Court dismissed the appeal which caused serious prejudice to him and the judgment under review, unless it is set aside, will cause failure of justice. The learned counsel for the review petitioner pointed out several circumstances in the review petition and it is contended that these circumstances were not taken into consideration or appreciated by this Court that led to the dismissal of the appeal. 3. On going through the judgment under review, I am of the view that the failure to examine the contentions of the parties with reference to the materials on record and not placing reliance on the evidence adduced by the review petitioner are sufficient reasons for reviewing the judgment in A.S.No.789/97. -4- R.P.No.1148/2010 In the circumstances, the review petition is allowed. The judgment under appeal is recalled. Post A.S.No.789/97 for hearing on 30th March, 2011. HARUN-UL-RASHID, Judge. kcv.