IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 26TH MAY 2011 / 5TH JYAISHTA 1933 RSA.No. 321 of 2004(F) -------------------------------- [AS.NO.19/2000 OF SUB COURT, CHERTHALA, O.S. NO.469/1998 OF PRINCIPAL MUNSIFF'S COURT, CHERTHALA] .................... APPELLANTRESPONDENT/DEFENDANT: ---------------------------------------------------------- 1. GIRIJA, RESIDING AT HOUSE NO.VI/504, KOVILAKOM, ANAVATHIL, MATTANCHERRY P.O., KOCHI. *ADDL. 2ND APPELLANT IMPLEADED: 2. DEEPU, AGED 31 YEARS, S/O. PURUTHOTHAMAN, THIRUTHALI HOUSE, PROJECT COLONY, AROOR.P.O., AROOR VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT. *ADDL. 2ND APPELLANT IMPLEADED VIDE ORDER DT. 20/03/07 ON I.A. NO.268/07. BY ADV. SMT.M.HEMALATHA. RESPONDENT/APPELLANT/PLAINTIFF: -------------------------------------------------------- PARAMESWARAN NAIR, RESHMI NIVAS, ODAMTHURUTHU VILLAGE, ERAMALLOOR P.O., CHERTHALA. BY ADV. SRI.K.C.CHARLES. THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 26/05/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. No. 321 OF 2004 =========================== Dated this the 26th day of May,2011 JUDGMENT Defendant in O.S.469/1998 on the file of Principal Munsiff Court, Cherthala is the appellant. Respondent is the plaintiff. Respondent instituted the suit for partition and separation of his share in the plaint schedule property contending that the property originally belonged to deceased Bhavani Amma who expired on 8.9.1993 and respondent and appellant are the only children and the property devolved on them equally and respondent is therefore entitled to get his half share separated. Appellant resisted the suit contending that respondent is not the son of Bhavani Amma but the son of Nani Amma the sister of Bhavani Amma and therefore he is not entitled to a share. It was also contended R.S.A.321/2004 2 that Bhavani Amma during her life time executed Ext.B11 will whereunder she bequeathed all her rights in favour of the appellant and therefore respondent is not entitled to claim any share. 2. Learned Munsiff on the evidence of PWs.1 and 2, DWs. 1 to 3, Exts.A1 to A6 and B1 to B11 dismissed the suit holding that respondent is not the son of Bhavani Amma and Bhavani Amma bequeathed her rights under Ext.B11 in favour of the appellant and therefore respondent is not entitled to claim any share. 3.Respondent challenged the judgment before Sub Court, Cherthala in A.S.19/2000. Learned Sub Judge on reappreciation of evidence found that learned Munsiff did not properly appreciate the evidence. Learned Sub Judge relying on the decision of the Apex Court in Dolgobinda Paricha v. Nimai Charan Misra(A.I.R.1959 SC 914)held that when the question to be decided is the relationship of the respondent with Bhavani Amma, the evidence of persons having special means of knowledge is most relevant and the R.S.A.321/2004 3 evidence of PW2 shows that he is a close relative of Bhavani Amma and his evidence establishes that respondent is the son of Bhavani Amma. Learned Sub Judge also found that Ext.A6 admission extract relating to the respondent shows that Bhavani Amma is the mother and the learned Munsiff wrongly did not rely on Ext.A6. It was therefore found that respondent is the son of Bhavani Amma. Learned Sub Judge also found that execution of Ext.B11 was denied by the respondent and details of Ext.B11 was not pleaded and it was produced only one year after filing of the written statement and its execution has not been proved and in any case, the suspicious circumstances were not removed by the appellant the propounder of the will, and therefore held that on the death of Bhavani Amma plaint schedule property devolved on the son respondent and daughter appellant and both are entitled to equal shares. A preliminary decree was passed. Second appeal is filed challenging the preliminary decree. 4. Appeal was admitted formulating the R.S.A.321/2004 4 following substantial questions of law. 1) Whether on the facts and circumstances of the case the finding of the lower appellate court the plaintiff is the son of the deceased Bhavani Amma in view of the presumption available under section 50 of the Evidence Act is correct? 2) Whether the finding of the lower appellate court that the respondent who is the propounder of Ext.B11 was able to establish that no suspicious circumstances exist in execution of Ext.B11 is correct? 3) Whether the finding of the lower appellate court that Ext.B11 is a genuine document R.S.A.321/2004 5 is correct? 5. Learned counsel appearing for the appellant and respondent were heard. 6. It is seen that there are some clerical errors in substantial questions of law 2 and 3 earlier formulated. The findings of the first appellate court is that Ext.B11 is not genuine and appellant the propounder has not removed the suspicious circumstances which exist in execution of Ext.B11. But in the questions of law formulated where negative should be there it is expressed in positive and where positive should be there it is expressed in the negative. In such circumstances substantial questions of law 2 and 3 are formulated as follows:- 2) Whether the finding of the lower appellate court that the appellant the propounder of Ext.B11, was unable to establish that the no suspicious R.S.A.321/2004 6 circumstances exist in execution of Ext.B11 is correct? 2) Whether the findings of the lower appellate court that Ext.B11 is not a genuine document is correct? 7. Learned counsel appearing for the appellant vehemently argued that first appellate court on the evidence should not have found that respondent is the son of Bhavani Amma. It was argued that though in Ext.A6 admission register extract Bhavani Amma is shown as the mother of the respondent, there is no evidence to prove that said information was furnished by Bhavani Amma and therefore based on Ext.A6, it should not have been found that respondent is the son of Bhavani Amma. It was argued that when the respondent was brought up by Bhavani Amma, the sister of his mother Nani Amma and treating him as a son, the fact that in R.S.A.321/2004 7 Ext.A6 Bhavani Amma is shown as the mother will not make her the biological mother of the respondent and therefore it cannot be found that respondent is the son of Bhavani Amma. Learned counsel argued that though evidence of PW2 was relied on by the first appellate court being a close relative, the evidence of PW2 is that he is the son of sister of Bhavani Amma and the evidence of PW1, the respondent shows that Bhavani Amma was not having any other sister or brother and therefore it is clear that the evidence of PW2 should not have been relied on. It is therefore argued that the finding of the first appellate court that respondent is the son of Bhavani Amma is unsustainable. Learned also counsel argued that though Ext.B11 was not produced along with the written statement as DW1 the appellant has explained the reason for the delay and its execution was proved as provided under section 68 of the Indian Evidence Act and under section 63 of the Indian Succession Act. Learned counsel pointed out that a will is to be proved by R.S.A.321/2004 8 examining at least one of the attesting witnesses and apart from DW2, the scribe, DW3 one of the attesting witness was also examined and in such circumstances, execution of Ext.B11 will was proved. It was also argued that though there is minor contradictions in the evidence, based on minor contradiction, first appellate court should not have found that there is suspicious circumstances in execution of the will. It was also pointed out that the will was scribed by DW2, a lawyer, though at that time he was not practising and evidence of DWs.2 and 3 establish that in the presence of DW3 and the other attesting witness, the testator had signed and the witnesses had seen the testator signing and the testator had seen the witnesses signing and in such circumstances Ext.B11 will should have been upheld. Learned counsel also argued that evidence of PW1 establishes that subsequent to his marriage in 1976 respondent was living at his wife's house and did not take care of the mother at all and when the house was fallen in R.S.A.321/2004 9 1986, along with the appellant Bhavani Amma had to work as a maid in the house of Chandrasekhara Kurup and respondent did not even take care of the mother and in such circumstances there is nothing unusual in the mother disinheriting the respondent even if he is the son, and in such circumstances first appellate court should not have interfered with the findings of the trial court. 8. Learned counsel appearing for the respondent argued that first appellate court appreciated the evidence in the proper perspective and there is no reason to interfere with the same. It was pointed that evidence of PW2 that he is the son of the sister of Bhavani Amma and a close relative of the appellant and the respondent was not challenged in cross examination and in such circumstances evidence of PW2 that respondent is the son of Bhavani Amma is to be accepted as was accepted by the first appellate court and therefore the findings that respondent is the son of Bhavani Amma is perfectly correct. Learned counsel pointed R.S.A.321/2004 10 out that Bhavani Amma was shown as the mother of the respondent while respondent, was admitted in the school as is clear from Ext.A6 and there is no other evidence to find that respondent is the son of Nani Amma as claimed by the appellant. Learned counsel also argued that if respondent is son of Bhavani Amma and Ext.B11 was executed by Bhavani Amma, she would not have stated in Ext.B11 that respondent is the son of her sister Nani Amma and that itself is sufficient to discard Ext.B11. It was pointed out that if Bhavani Amma wanted to disinherit the son, as he was not taking care of her, she would have executed a will in the name of the daughter disclosing that fact and will not declare that respondent is not her son and for that reason, it is to be found that Ext.B11 is not genuine. Learned counsel also pointed out that in spite of the plea of the respondent that Ext.B11 is not genuine and was not executed by Bhavani Amma and the signature seen in Ext.B11 is not that of Bhavani Amma, no evidence was adduced to prove her R.S.A.321/2004 11 signature. It was also pointed out that details of Ext.B11 was not disclosed either in the reply notice or in the written statement and the very fact that it was produced one year after the filing of the written statement establishes that it was created subsequently. Learned counsel also argued that DW2 admitted that he is a relative of Saradamma, the wife of Chandrasekhara Kurup with whom Bhavani Amma and the appellant were residing subsequent to 1986 and as admitted by DW1, the witnesses to Ext.B11 are also closely acquainted with the said house. It is therefore argued that there is no reason to interfere with the findings of the first appellate court. 9. Though the trial court found that respondent is not the son of Bhavani Amma, first appellate court rightly relied on the evidence of PW2. As rightly found by the first appellate court, evidence of PW2 that he is the son of the sister of Bhavani Amma was not challenged in cross examination. It was not even suggested that PW2 is R.S.A.321/2004 12 not the son of the sister of Bhavani Amma. Though learned counsel appearing for the appellant argued that in the light of the evidence of PW1 that Bhavani Amma is not having any brother or sister, evidence of PW2 cannot be accepted, even according to the appellant, that evidence of PW1 is not correct. Appellant has no case that Bhavani Amma was not having any sister or brother. On the other hand, it is her case that Nani Amma is the sister of Bhavani Amma. Therefore based on the incorrect statement of PW1, it cannot be said that PW2 is not the son of the sister of Bhavani Amma, especially when appellant the daughter of Bhavani Amma did not challenge that evidence. When PW2 is such a close relative, he is definitely a person who has special knowledge with regard to the relationship and first appellate court rightly relied on his evidence based on the decision of the Apex Court in Dolgobinda's case (supra). Moreover, Ext.A6, the admission register extract issued from the school establishes that when respondent was admitted in R.S.A.321/2004 13 the school, Bhavani Amma was shown as his mother. As against their evidence, there is no contra evidence to prove that respondent is the son of Nani Amma. If that case is true, appellant should have examined some other close relative of Bhavani Amma, who has knowledge with regard to the relationship. On the evidence first appellate court was fully justified in reversing the findings of the learned Munsiff and finding that respondent is the son of Bhavani Amma. 10. If respondent is the son of Bhavani Amma and Bhavani Amma died intestate, he is definitely entitled to get half share in the plaint schedule property along with the appellant. The question therefore is whether Bhavani Amma executed Ext.B11 will as claimed by the appellant? Though trial court relied on Ext.B11, first appellate court has given cogent and valid reasons for not relying on Ext.B11. First of all, it is to be noted that even though in the reply notice and in the written statement appellant contended that Bhavani Amma had R.S.A.321/2004 14 executed a will bequeathing the properties to the appellant, the details of the will was not disclosed and even the date was not shown. Ext.B11 the unregistered will was produced later on 13.9.1999, as per I.A.3046/1999. Though DW1 in cross examination deposed that she came to know about the execution of will after the death of Bhavani Amma when a demand for the balance amount payable in respect of the loan availed by Bhavani Amma was received and when the appellant searched the box, in the affidavit filed along with I.A.3046/199 the case disclosed was that appellant could trace it only on 3.9.1999 from the shelf kept at her residence. If Ext.B11 will was genuine and was in existence when the written statement was filed by the appellant on 29.9.1998 in the ordinary course the details of the will should have been disclosed in the written statement and the will should have been produced along with the same. Strangely the will was produced almost one year thereafter. That itself will cast doubt with R.S.A.321/2004 15 regard to the genuineness of Ext.B11. 11.A reading of Ext.B11 cast further doubt with regard to its genuineness. If the mother is executing a will bequeathing her property in favour of her daughter, and the son is disinherited for the reason that he is not taking care of her and it is the daughter who is looking after her or because of any other special love and affection towards the daughter, the will would be executed disclosing that fact. When it is already found that respondent is the son of Bhavani Amma, it is clear that if in fact, Ext.B11 will was executed by Bhavani Amma she would not have stated in the will that respondent was illegally born to her sister Nani Amma and to conceal that fact the respondent was brought by Bhavani Amma. There is absolutely no evidence to corroborate the said allegations in Ext.B11. This is a crucial fact to disbelieve Ext.B11. 12. Though a will is to be proved like any other document as provided under section 68 of R.S.A.321/2004 16 the Indian Evidence Act, with the special requirements provided under section 63 of Indian Succession Act by examining at least one of the attesting witnesses, fact that DW3 was examined and he claimed that the will was executed by Bhavani Amma in his presence and the presence of the other attesting witnesses, will not make the will genuine or will not prove the execution of will. When the respondent is denying the genuineness of the will and is contending that the signature seen in Ext.B11 is not that of the mother, it is necessary for the appellant being the propounder of the will, to prove that the signature seen therein is that of Bhavani Amma. Evidence of DW1 shows that she was aware of existence of other documents containing the signature of Bhavani Ammaas admitted by DW1. That document was not produced and no steps was taken to produce that document and to compare the signature seen therein with the signature seen in Ext.B11. Added to this, Ext.B7 a photocopy of a petition allegedly filed by R.S.A.321/2004 17 Bhavani Amma before District Collector was produced. That petition contains a signature purporting to be that of Bhavani Amma. A perusal of the signature seen therein with the signature seen in Ext.B11 estblishes that the signatures are not similar. In such circumstances, it is not possible to accept Ext.B11 as the one executed by Bhavani Amma. First appellate court rightly appreciated the evidence of DW2, the scribe and DW3 the alleged attesting witness in Ext.B11 and found that their evidence is not believable. On going through their depositions and the entire evidence, I find that appreciation of evidence by the first appellate court was proper and correct. In such circumstances, I find no reason to interfere with the finding of the first appellate court that respondent is the son of Bhavani Amma and Ext.B11 is not a will executed by Bhavani Amma and on the death of Bhavani Amma her rights devolved upon her son the respondent and daughter the appellant and respondent is entitled to one half share. There R.S.A.321/2004 18 is no plea that the right of the respondent has been lost by ouster and adverse possession. In such circumstances, the preliminary decree passed by the first appellate court is perfectly correct and warrants no interference. The appeal is dismissed. No cost. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006