IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 28TH MAY 2010 / 7TH JYAISHTA 1932 AS.No. 249 of 1999(Y) ------------------------------- OS.804/1995 of III ADDL.SUB COURT, KOZHIKODE .................... APPELLANTS/DEFENDANTS: ------------------------------------------- *1. NADAPUNATHIL JANAKI, W/O.BALAN, PUTHIYARA, KASABA AMSOM DESOM, CALICUT-4. *(DIED) * IT IS RECORDED THAT 1ST APPELLANT DIED AND APPELLANTS 2 TO 5 ARE IMPLEADED AS LEGAL REPRESENTATIVES OF THE DECEASED FIRST APPELLANT WHO ARE ALREADY IN THE PARTY ARRAY AS PER ORDER DATED 31/05/2001 IN MEMO (BY C.F. NO.3766/2001). 2. NADAPUNATHIL BHANUMATHI, W/O.SUBRAMANIAN, “AMBADI”, THIRUTHIYAD. 3. KOZHIMANIL THAZATHU RAJANI, W/O.RAMESHAN, ARANHIKKAL. 4. NADAPUNATHIL DEVADASAN, S/O.BALAN, KASABA AMSOM DESOM, CALICUT-4. 5. NADAPUNATHIL RAGINI, D/O.BALAN, PUTHIYARA, KASABA AMSOM DESOM, CALICUT-4. BY SMT.SUMATHY DANDAPANI, SENIOR ADVOCATE, ADV. SRI.V.SREEKUMARA MENON. RESPONDENT/PLAINTIFF: --------------------------------------- P. MINI, S/O.N.P. JAYARAJAN, “HARSHAM” HOUSE, VELLISSERY, CHERVARAMBLAM, CALICUT-17. BY ADV. SRI.K.P.BALASUBRAMANYAN, SRI.M.RAJAN. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 28/05/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. AS.No. 249 of 1999(Y) ORDER ON C.M.P.NO.1830/1999 AND I.A. NO.11/2003 IN AS. NO.249/1999 DISMISSED 28/05/2010. SD/- M.N.KRISHNAN, JUDGE //TRUE COPY// P.A. TO JUDGE rs. M.N.KRISHNAN,J. ========================= A.S.No.249 OF 1999 ====================== Dated this the 28th day of May 2010. JUDGMENT This is an appeal preferred against the judgment and decree of the Subordinate Judge's Court, Kozhikode in O.S.No.804/1995. The suit is one for partition. The plaintiff is a widow of one Jayarajan, whose father was one Balan. Originally, the only defendant was the widow of Balan and other supplementary defendants are children of Balan born in first defendant. The case of the plaintiff is that during life time, Balan had executed a Will with respect to the plaint schedule and other properties, as per which, the plaint schedule had vested in Jayarajan after the death of Balan. This Jayarajan died in 1994 and thus as the legal representatives of Jayarajan the property had devolved upon the plaintiff and first defendant. Therefore, the plaintiff has sought for division of the property. 2. On the other hand, defendant would contend that A.S.No.249 OF 1999 2 Balan has not executed any Will and the wife and children of Balan are legal representatives on his death and therefore the plaintiff is not entitled to claim half right over the property. The defendants do not admit as such execution of the Will. 3. On analysis of the materials, the court below found in favour of the plaintiff regarding the correctness of the Will and granted decree in favour of the plaintiff. It is against that decision the defendants have come up in appeal. During the pendency of the appeal, the first defendant mother died and her legal representatives are essentially the plaintiff and the other defendants. 4. Now the disputed Will is marked as Ext.X1. It is alleged to be written by the deceased Balan and deposited before the Registrar and on the death of Balan it has been registered. A perusal of the said Will would reveal that Balan had an item of immovable property as well as a Cycle mart. By virtue of Ext.X1 Balan had bequeathed the property than the movable property with right of enjoyment to his widow without power of alienation and had A.S.No.249 OF 1999 3 bequeathed a cycle mart in favour of Mr. Jayarajan. Will also stipulates about the liability and the manner in which it has to be discharged. It is also stated in the Will that the son Devarajan is entitled to Rs.5,000/- and two daughters are entitled to Rs.3,000/- and one of the unmarried daughter namely Raginy is to be got married by Jayarajan as well as the mother. So a reading of the Will would reveal that the said Balan was considerate to all the members and had borne in mind about his responsibility and then had executed Will. I am conscious of the fact that when a Will is attempted to be proved before a court of law the court is sitting in the arm chair of the testator and trying to analyse the things. It is also settled principle of law a person who propounds the Will has a duty to prove the Will and also to remove the cloud of suspicion if any surrounding the execution of the Will. It is also to be remembered that the court has to adopt a realistic approach in analysing the facts and the circumstances, the materials etc. The learned counsel for the appellant very strongly contends before me that evidence of PW3 one of the attestors is not A.S.No.249 OF 1999 4 satisfactory at all and therefore the Will cannot be said to be proved. Under Section 63 of the Indian Succession Act a Will is to be proved by examination of the attesting witness who had witnessed the signing of the Will by testator and other witnesses and viceversa. It is also to be stated that the testator should be proved to have a state of mind capable of understanding consequences of this action. The witness was examined by the Commissioner and in the chief examination, the witness had clearly deposed that Balan and he were friends and he was running a hotel very near the Cycle mart of Balan called 'Beena Hotel' and said Balan had requested him to attest the Will as a witness. As per Balans request he had gone to the scribe's office. After reading, Balan signed and thereafter he had signed and the other witness Vasu signed and all had seen each other affixing the signature. So this is the evidence in the chief examination. It has to be remembered that this witness was aged about 72 years at the time of examination and he was speaking now speaking about a fact that have taken place about 15 years back. One can always visualise when A.S.No.249 OF 1999 5 questions are pitted against witness in cross examination it will be difficult for the witness and thus the substance of the evidence has to be taken into consideration. The methodology adopted in the cross examination as usual was which pen was used, who signed with which pen, whether there was any signature before you signed. These type of questions always create adequate confusion in the mind of witnesses and isolated answers given against the same should not be taken as a total failure of the witness. What the court has to find out is whether evidence of witness is trustworthy and intrinsic reliability and inherent probability can be attached. It is always said men may lie but circumstances will never lie. When that principle is borne in mind and evidence is analysed with the subsequent happenings. It is clear that Balan on his own mind and free will had executed Ext.X1. Balan was very concerned about the entire family and that is why he had made stipulations about each and every member of the family and also his responsibility to his creditors. The Will was not kept in his house. It was deposited with the A.S.No.249 OF 1999 6 Registrar and on the death of Balan as per the procedure the Will was taken out and registered. So, therefore all there are important circumstances which connects the truthfulness of the Will. Therefore, I hold that the plaintiff has succeeded in proving the Will, it confers right on Jayaajan with respect to the plaint schedule property. 5. When Jayarajan was the absolute owner of the plaint schedule property he died in 1994. Under the provisions of Hindu Succession Act, the plaintiff and the first defendant will be the legal heirs or in otherwords the plaintiff and first defendant are entitled to equal share over the plaint schedule property. Now, the first defendant namely the mother is dead. She is survived by four children and widow of a predeceased son. So her ½ share has further to be divided by 1/5, which means plaintiff will be entitled to share of 1/2 +1/10 which would be 6/10 and defendants 2 to 5, 1/10 shares each. So if the plaint schedule property is divided into 10 equal shares, the plaintiff will be entitled to 6 such shares and defendants 2 to 5 in the appeal each entitled to 1 out of 10 shares. Rest of A.S.No.249 OF 1999 7 the decision rendered by the trial court will remain and the plaintiff is at liberty to apply for passing final decree in accordance with law. Disposed of accordingly. M.N.KRISHNAN,JUDGE. mns In the 4th sentence in the 4th paragraph of the judgment dated 28/05/2010, the words “property than” are substituted as “property other than” and in the last sentence of page 2 of the judgment the words “Raginy is to be got married by Jayarajan as well as the mother” are corrected and substituted as “Raginy is to be given in marriage by Jayarajan as well as the mother”, as per order dated 18/06/2010 in A.S. No. 249/1999. Sd/- (Registrar Judicial). A.S.No.249 OF 1999 8 A.S.No.249 OF 1999 9