IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 25TH JUNE 2009 / 4TH ASHADHA 1931 RSA.No. 215 of 2009() --------------------- AS.380/2003 of DISTRICT COURT, PALAKKAD OS.120/1994 of SUB COURT, OTTAPPALAM .................... PETITIONER:APPELLANTS/APPELLANTS/PLAINTIFFS ---------------------------------------------------------- 1. RAMAN, S/O.KRISHNAN. 2. RAVIKUMAR, S/O.RAMAN. 3. KRISHNAN, S/O.RAMAN. ALL ARE RESIDING AT VADAKKE PURAKKAL PERINKANOOR AMSOM, CHATHANNUR DESOM, OTTAPALAM TALUK, PALAKKAD DISTRICT. BY SENIOR ADV. SRI.V.CHITAMBARESH, ADV. SRI.T.C.SURESH MENON ADV. SRI.JIBU P.THOMAS ADV. SRI.P.S.APPU & ADV. SRI.NIMOD.A.R. RESPONDENTS:RESPONDENTS/DEFENDANTS 2 & 3 --------------------------------------------------------- 1. SARADA, WIDOW OF CHATTU ASARI, RESIDING AT BANGALOV PARAMBA, CHERUTHURUTHI PO, OTTAPALAM TALUK., PALAKKAD DISTRICT. 2. SREEDEVI, D/O.LATE MANKA, RESIDING AT THAZHATHETHIL HOUSE, KEEZHAYUR PO, PATTAMBI. OTTAPALAM TALUK, PALAKKAD DISTRICT. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 25/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID, J. --------------------------------------- R.S.A.No.215 of 2009 ---------------------------------------- Dated this the 25th day of June, 2009 JUDGMENT The Second Appeal is directed against the judgment and decree in A.S.No.380/2003 on the file of the District Court, Palakkad. The plaintiffs in O.S.No.120/1994 on the file of the Sub court, Ottapalam are the appellants. The suit is filed for permanent prohibitory injunction to restrain the defendants from trespassing into the plaint schedule property and not to commit any waste therein. The trial court dismissed the suit, confirmed in appeal. Hence this appeal. 2. The plaintiffs claimed title and possession on the strength of Ext.A3 will. The courts below observed that though the suit is for injunction simplicitor, the real question to be considered is as to the genuines of Ext.A3 will alleged to have been executed by Chathu Asari. The first plaintiff is a brother of Chathu and the other plaintiffs are his children. The defendants are the wife and children of Chathu Asari. The defendants denied the execution of Ext.A3 will and further contended that Ext.A3 is a fabricated document created by the plaintiffs with R.S.A.No.215 of 2009 2 the connivance of PW2, who claims to be one of the attestors of the will. PW.2 is the son-in-law of first plaintiff. The courts below rightly held that when the execution of will is denied, the burden is on the propounder of the will to prove the genuineness of the will and to remove all the suspicious circumstances surrounding the execution of the will. Out of the attestors in Ext.A3 will, plaintiffs examined PW.2 who is the son-in-law of the first plaintiff. PW.1 has no direct knowledge about the execution of will. 3. The courts below pointed out that the name of District and who wrote Ext.A3 are not written in the document and there is no signature of the scribe. The court also observed that the stamp paper was purchased from a place namely Chittur which is at a distance of 80 Kms from the residence of Chathu Asari. The court found that stamp papers were available at Pattambi, Ottapalam and Palakkad, etc which are near to the residence of testator. The courts below observed that a close relative of PW1, who is settled at Chittur, is a witness to the document. It is observed that the fact that stamp paper was purchased from R.S.A.No.215 of 2009 3 Chittur where PW1 was staying, is a strong circumstance to doubt the genuineness of the will, despite the fact that the stamp papers are available in the nearby places. The courts below also held that there is absolutely nothing to show that the appellants were looking after Chathu Asari and as such there is no reason for Chathu Asari to disinherit his wife and children. The stamp paper was purchased from Chittur which is the place of residence of PW.2. The conduct of Chathu Asari who purchased the stamp paper from a far away place is examined in the light of the contentions raised by the defendant that Ext.A3 will is a fabricated document created by the plaintiffs with the connivance of PW.2. The evidence discloses that the defendants were residing with Chathu Asari and that they have maintained good relationship with him. In the said circumstances the court also held that there is no reason for Chathu Asari to disinherit the legal heirs namely the respondents. Both courts have arrived at definite findings to the effect that the will was created at the residence of PW.2 and that it was not executed by Chathu Asari. R.S.A.No.215 of 2009 4 4. Both courts found that the plaintiffs claimed possession on the basis of will alone. The will is found to be not genuine but a fabricated document. The plaintiffs have failed to establish possession and therefore they are not entitled to the reliefs claimed in the suit. 5. All the findings in the suit are arrived at on the basis of oral and documentary evidence. The findings are purely factual. The views taken by the court below cannot be disturbed for any reason in the given circumstances, facts and circumstances of the case. No question of law much less any substantial question of law arises for consideration in this second appeal. There is no scope for invoking Section 100 of the C.P.C. Therefore this appeal fails and accordingly dismissed. HARUN-UL-RASHID, JUDGE skj.