IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 22ND MARCH 2010 / 1ST CHAITHRA 1932 RSA.No. 307 of 2010() --------------------- AS.198/2005 of DISTRICT COURT, PATHANAMTHITTA OS.202/2002 of MUSNIFF COURT,ADOOR .................... APPELLANT(APPELLANT/2nd DEFENDANT) -------------------- KUTTY RADHAMMA, D/o. KUTTY SREEJITH BHAVAN, EDATHITTA MURI KODUMON VILLAGE BY ADV. SRI.SATHISH NINAN SRI.SANTHOSH MATHEW SRI.ARUN THOMAS RESPONDENTS (RESPONDENTS/PLAINTIFFS and 1st DEFENDANT) -------------------------------------------------------- 1. NANU VISWANATHAN, S/o. NANU ANU VILASAM, EDATHITTA MURI KODUMON VILLAGE 2. NANU SOMADASAN, PUTHUPARAMBIL VEEDU KODUMON MURI KODUMON VILLAGE 3. KUTTY REMANY AMMA, CHARUVIL THEKKETHIL VEEDU, CHARUMMOODU THAMARAKULAM VILLAGE THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 22/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- R.S.A.No.307 of 2010 --------------------------------------- Dated this 22nd day of March, 2010 JUDGMENT Appellant and respondents are children of late Kesavan Nanu and Kunjukutty. Plaint A schedule belonged to the mother, she having acquired the same as per L.A.Proceeding No.2976 of 1995. Plaint B schedule also belonged to the mother as per assignment deed No.231 of 1976. According to respondent Nos.1 and 2/plaintiffs, mother who was mentally ill since about 4 years before her death was staying with the youngest daughter, appellant/defendant No.2 and she was in possession and enjoyment of plaint A and B schedule properties since the mother was incapable of possessing and looking after the same. It is also the case of respondent Nos.1 and 2 that when they demanded partition appellant No.1 claimed right over the properties as per Wills allegedly executed by the mother but, according to respondent Nos.1 and 2, those Wills are void since the same were got executed fraudulently by the mother who had no sound disposing state of mind at the relevant time. Respondent Nos.1 and 2 wanted partition and separate possession of their share in plaint A and B schedule properties. Respondent No.3/defendant No.1 supported respondent Nos.1 and 2. Appellant/defendant No.2 resisted the suit and made a counter claim. According to her, mother in sound disposing state of R.S.A.No.307 of 2010 2 mind executed Exts.B2 and B3, registered Wills dated 22-05-1990 and 16-08-1999, respectively. As per Ext.B2, plaint B schedule was bequeathed among appellant and respondent Nos.1 and 2. As per Ext.B3 entire plaint A schedule property was bequeathed in favour of the appellant. Trial court upheld Ext.B2, Will dated 22-05-1990 but found against Ext.B3 and passed a preliminary decree for partition of plaint A schedule. That was challenged by appellant in the first appellate court in A.S.No.198 of 2005. Respondent Nos.1 and 2 preferred a cross objection against decision of the trial court which upheld Ext.B2. First appellate court dismissed the appeal and cross objection. Defendant No.2 is aggrieved by the dismissal of the appeal and has preferred this second appeal urging by way of substantial question of law whether first appellate court erred in not re- appreciating the evidence and concluding that Ext.B3 is vitiated. It is contended by learned counsel for respondent No.3/defendant No.1 that finding of the courts below as to execution of Ext.B2 cannot be sustained. 2. Question whether finding of the courts below on Ext.B2 is correct does not arise for decision in the second appeal. Now this court is only concerned with the finding of the courts below as to the acceptability of Ext.B3. True DW1, attester was examined to prove the execution of Ext.B3. According to respondent Nos.1 and 3, mother was R.S.A.No.307 of 2010 3 suffering from insanity at the time of Ext.B3 was allegedly executed and that document got executed fraudulently. The contention advanced by learned counsel for appellant is that in view of sections 34 and 35 of the Indian Registration Act (for short, “the Act”), courts below ought to have drawn presumption regarding due execution of the instrument. This court in Antony Vs. Ouseph and Ano. (1989 (2) KLJ 765 paragraph 9) held that the fact of registration of the Will is not a substitute for proof regarding of execution though, in a given case the fact of registration can also be taken into account in favour of due execution of the document if it is otherwise proved. Merely for the reason of registration of the Will its genuineness cannot be presumed (See Ananda Bhai Vs. Kanaka Bhai (1994(1) KLT 474)). In Bhagat Ram Vs. Suresh (AIR 2004 SC 436) the Supreme Court took the view that the endorsement by the Registrar is relevant only for registration purposes only and that it does not dispense with proof of execution and attestation. Therefore banking upon sections 34 and 35 of the Act appellant cannot justifiably contend that the courts below ought to have presumed due execution and attestation of Ext.B3. Respondent Nos.1 and 2 have examined XW1, a medical officer of Panthalam NSS Medical Mission Hospital and proved Ext.X1. Ext.X1 is the case sheet pertaining to the treatment allegedly given to the mother of the parties in that hospital on 11-03-1999. Though there R.S.A.No.307 of 2010 4 was some dispute as to the identity of the patient referred to in Ext.X1. Courts below have held in favour of respondent Nos.1 and 2 in that matter and that being a finding on the evidence on record and involves no substantial question of law. It is also true that going by Ext.X1 and evidence of XW1, patient referred to in Ext.X1 was treated by one Dr. Sreekumar who was not available for trial as he was in Andhra Pradesh. XW1 is also competent to give evidence regarding the illness of the patient referred to in Ext.X1 and given his opinion as to the mental incapacity of that person. The symptoms of the illness of patient referred to in Ext.X1 is extracted by the learned District Judge in paragraph 18 of the judgment. The history given is of hallucination and delusion. It is stated that the patient has paranoid ideas present (on the date of examination). Her talks were irrelevant and incoherent, had sleeplessness, forgetfulness, was abusing others, not taking food, was having tendency to abscond at night and wandering aimlessly in the surroundings. Her personal hygiene was found to be poor. The history gave that the patient was having the illness since about 6 to 8 years and that patient was brought by Radha (appellant). It is also revealed from the evidence that patient was reviewed on 18-03-1999 and 04-04-1999 and that thereafter. Learned District Judge has observed that XW1 was in charge of Psychiatry department of the hospital concerned and he has noted that the symptoms above stated R.S.A.No.307 of 2010 5 indicated Paranoid Schizophrenia and later the patient had developed some depressive features. It was also found that functional reasons would affect the mind and the patient was suffering form severe phobia. XW1 had occasion to treat the patient though she was not brought before him. In fact, appellant when examined as DW1 admitted that the mother had mental illness. But of course she denied that the mother was incapable of executing Ext.B3. 3. When a person is found to be of generally unsound mind, it is for the person relying on the document to show that at the time of execution of the document the executant was in a lucid interval. Here, it is a not insanity but Paranoid Schizophrenia. The executant generally had that illness. In such a situation, it was for appellant to show that at the time of executing Ext.B3, executant was not having any such illness. Nature of the illness referred to in Ext.X1 and spoken by XW1 along with the circumstances was taken into account by the courts below to hold that Ext.B3 was not executed by the deceased mother in sound disposing state of mind. Learned District Judge also referred to the evidence of DW5 to hold that his version regarding due execution and attestation of Ext.B3 cannot be accepted. Learned District Judge also has referred to the decisions on the point as to what all are suspicious circumstances and held that Ext.B2 emerged from suspicious circumstance but the propounder (appellant) was not able R.S.A.No.307 of 2010 6 to explain it. In the circumstance, mere fact of registration by itself is not sufficient to uphold Ext.B3. On going through the judgments under challenge and hearing learned counsel I am not satisfied that any substantial question of law is involved. Resultantly the second appeal is dismissed in limine. THOMAS P JOSEPH, JUDGE Sbna/