IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 9TH SEPTEMBER 2010 / 18TH BHADRA 1932 SA.No. 575 of 1996(5) ------------------------------- AS.74/1989 of ADDL. DISTRICT COURT,KOZHIKODE OS.489/1977 of PRL.MUNSIFF COURT, KOZHIKODE-II .................... APPELLANT(S): RESPONDENT/DEFENDANT -------------------------------------------------------------- *SADANANDAN, S/O. NAMBIKKATTU RAMAN, PANNIYANKARA AMSOM DESOM, KOZHIKODE TALUK.(DIED). *ADDL. R2 IMPLEADED. 2. RATHNAKUMARI, NAMBIKATHU HOUSE, KANNATHARA PARAMBA, KALLAI, KOZHIKODE. 3. SASHITHA, D/O. SADANANDAN, DO. DO. 4. SARITHA, D/O. SADANANDAN, DO. DO. * 5. SAJITHA, D/O. SADANANDAN, DO. DO. *(NAME OF ADDL. 5TH APPELLANT CORRECTED AS SAJITH S/O/SADANANDAN AS PER ORDER DT. 13.1.2011 IN IA. 79/2011.) 6. REKHA, D/O. SADANANDAN, DO. DO. *ADDL. APPELLANTS 2 TO 6 ARE IMPLEADED VIDE ORDER DTD. 8.6.2006 IN CMA. 250/2006 AND IA NOS. 998 & 999 IN SA. 575/1996. BY ADV. SRI.P.V.JYOTHI PRASAD RESPONDENT(S): APPELLANTS/PLAINTIFFS 3 TO 10 --------------------------------------------------------------------------- *1. BHASKARNA, AGED 44 YEARS, NALUPURAKKAL, KALATHINKUNNU AMSOM DESOM, KOZHIKODE TALUK. (DIED). 2. PUSHPAVALLI, 41 YEARS, NALUPURAKKAL, KALATHINKUNNU AMSOM DESOM, KOZHIKODE TALUK. S.A. NO.575/1996 3. DEVARAJ, AGED 38 YEARS, NALUPURAKKAL, KALATHINKUNNU AMSOM DESOM, KOZHIKODE TALUK. 4. BABURAJ, AGED 35 YEARS, NALUPURAKKAL, KALATHINKUNNU AMSOM DESOM, KOZHIKODE TALUK. 5* PRAMARJ, AGED 32 YEARS, NALUPURAKKAL, KALATHINKUNNU AMSOM DESOM, KOZHIKODE TALUK.(DIED) 6. JAYAPRAKASH, AGED 29 YEARS, NALUPURAKKAL, KALOATHINKUNNU AMSOM DESOM, KOZHIKODE TALUK. 7. PUSHPANNA, AGED 26 YEARS, NALUPURAKKAL, KALATHINKUNNU AMSOM DESOM, KOZHIKODE TALUK. 8. ASHA, AGED 22 YEAR, NALUPURAKKAL, KALATHINKUNNU AMSOM DESOM, KOZHIKODE TALUK. *ADDL. R9 TO R14 IMPLEADED. 9. RADHA, W/O. LATE BHASKARAN, KALATHIKUNNU, KOZHIKODE. 10. SYAMAL, S/O. DO. DO. 11. SABITHA, D/O. DO. DO. 12. LATHIKAMA, W/O. PRAMARAJ, DO. DO. 13. PRATHIKA, D/O. DO. DO. 14. PRAJIN RAJ, S/O. DO. DO. *ADDL. RESPONDENTS R9 TO R14 ARE IMPLEADED AS LR'S OF DECEASED R1 & R5 AS PER ORDER DTD. 21.5.10 IN IA. 1899/2009. IT IS RECORDED THAT SURVIVING RESPONDENTS 2 TO 4 AND 6 TO 8 SUFFICIENTLY REPRESENT DECEASED RESPONDENTS 1 AND 5 AS PER ORDER DTD. 21.5.2010 IN IA. 1898/09. BY SRI.M.C.SEN, SENIOR ADVOCATE BY ADVS. SRI.M.P.SREEKRISHNAN SMT.SHAHNA KARTHIKEYAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 09/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP. NO.1283/1996 IN SA. NO.575/1996 DISMISSED 09/09/2010 SD/- HURUN- UL- RASHID, JUDGE TRUE COPY P.A. TO JUDGE tss HARUN-UL-RASHID, J. ------------------------ S.A.No.575 Of 1996 ---------------------- Dated this the 9th day of September, 2010. J U D G M E N T The defendant in O.S.No.489 of 1977 of the Principal Munsiff Court, Kozhikode II, is the appellant. The appeal is directed against the judgment and decree dated 11.8.1995 in A.S.No.74 of 1989. Suit was filed for recovery of possession on the strength of plaintiff's title and also for consequential injunction. The trial court held that Ext.B1 is a validly executed will, that the defendant has discharged the burden of proving the will and that the plaintiff therefore has no right over the plaint schedule properties. The trial court dismissed the suit. The lower appellate court reversed the findings of the trial court and passed a decree as prayed for in the plaint. Parties hereinafter are referred to as the plaintiff and defendant as arrayed in the suit. 2. The plaint schedule properties belong to Sri.Kandar. Plaintiff is the mother of Kandar. Kandar died on 13.10.1977 The plaintiff's case is that after the death of Kandar being the S.A.No.575 Of 1996 ::2:: sole legal heir, plaint schedule properties devolved upon her. It is alleged in the plaint that the defendant had trespassed into the house and started residing in the house with his wife and children, that the defendant has no right in the property and therefore the plaintiff is entitled to recover possession of plaint B schedule property and also for perpetual injunction restraining him from trespassing into plaint A schedule property. 3. In the written statement, the defendant inter alia contented that the plaintiff has never obtained any right in plaint A schedule properties, that Kandar has executed a will with respect to the plaint schedule properties on 15.7.1977, that the plaint schedule properties were bequeathed to the defendant by the deceased Kandar and thus the defendant has obtained right over the plaint schedule properties on the death of Kandar. The defendant also denied the averment in the plaint that the plaintiff has been in possession and enjoyment of the plaint schedule properties. It is also pleaded that the plaintiff, for the last 15 years before the death of Kandar, has been residing with her daughter. The defendant also denied the averment that he has trespassed into plaint B schedule properties. It is further stated S.A.No.575 Of 1996 ::3:: that the plaintiff has filed a complaint before the police and influencing the police she had made the defendant to hand over the documents with respect to the properties to the plaintiff. 4. Pending suit, the plaintiff died and her only daughter was impleaded as the additional second plaintiff. The additional second plaintiff also died pending suit and her legal heirs were impleaded as additional plaintiffs 3 to 10. Parties adduced evidence in support of their respective contentions. The evidence consists of oral evidence of PW1, DWs 1 to 3 and documentary evidence of Exts.A1-A7 and B1 to B28. 5. Plaint A schedule is the property and B schedule is the building situated in A schedule property. Admittedly, the property belong to Kandar. Kandar died without wife and children. It has come out in evidence that he obtained divorce more than 20 years before his death. The deceased 1st plaintiff is the mother of Kandar. The sole defendant is the son of Kandar's brother, namely, Raman. Raman is the son of deceased first plaintiff's husband through his first wife. The 1st plaintiff, mother of Kandar claims right in the property as the sole legal heir of deceased Kandar. The defendant claims right over the property S.A.No.575 Of 1996 ::4:: on the strength of a will alleged to have been executed by deceased Kandar. Ext.B1 is the will. 6. The trial court examined the question as to whether Ext.B1 is a document executed by Kandar. DWs 2 & 3 were examined to prove Ext.B1 will. These two witnesses are the attestors to Ext.B1 will. Both witnesses deposed before the court that they signed as a witness in Ext.B1 will, that deceased Kandar had put his signature in Ext.B1 will in their presence and that the deceased Kandar and DWs 2 & 3 put their signatures in the presence of each other. 7. It is an admitted case that deceased Kandar was a carpenter. The defendant as DW1 has testified before the court that his father died while he was in the mother's womb, that he was looked after by deceased Kandar from his childhood, that Kandar acted as his guardian, that in the school register Kandar's name was entered as the guardian, that Kandar met the educational expenses and after his studies he worked as a carpenter under Kandar, that he is the sole male member of his family, that his grandfather Kuttysankaran had three male children by name Kandar, his father Raman and Manukuttan, that S.A.No.575 Of 1996 ::5:: Manukuttan was an unmarried person, that Manukuttan lived as a bachelor and that he is the sole surviving male member in the family. He further testified that since his father died even before his birth he was under the care and protection of Kandar. He also testified that Kandar treated him like his own son, that Kandar and his mother lived apart, that there was property dispute between them for the last 25 years and that Kandar lived separately from his mother all along. He also testified that he lived with Kandar in his house on several occasions. 8. Plaint is silent about the will. The deceased first plaintiff pleaded that she is the sole legal successor of the deceased Kandar, that the defendant had trespassed into plaint B schedule building and therefore she filed the suit for recovery of possession on the strength of plaintiff's title and for consequential injunction. In the written statement the defendant contented that the plaintiffs have not manner of right, title or interest in the plaint schedule property, that the deceased Kandar executed the will and therefore he is the absolute owner of the plaint schedule properties. The written statement contains detailed averments regarding the execution of the will. Plaintiff did not file any S.A.No.575 Of 1996 ::6:: replication traversing the averments in the written statement regarding the execution of the will or denied the existence of the will or its execution. The plaintiff failed to file replication nor did she filed any petition for amendment of the plaint inserting necessary averments denying the execution of the will. In effect, there is no pleading at all on the part of the plaintiff neither denying the execution of the will or pleading regarding any suspicious circumstances leading to the execution of the will nor the plaintiff has a case that the will was executed at the instance of the defendant who had practised fraud, undue influence etc. 9. Additional 5th plaintiff who is the grandson of the deceased first plaintiff was examined as PW1. He testified that the deceased first plaintiff was residing permanently along with his mother Lakshmi, who is the additional second plaintiff. He also testified that the deceased first plaintiff started permanent residence with his mother 15 years before the death of Kandar. Thus he corroborates the evidence tendered by DW1 that deceased first plaintiff was not residing with Kandar for the last so many years. DW1 testified that there was no occasion for the deceased first plaintiff even to meet or talk with Kandar for more S.A.No.575 Of 1996 ::7:: than 15 years. 10. Ext.B5 is the deposition of the deceased first plaintiff. She lodged a complaint against the defendant and two others before the Court of Judicial First Class Magistrate-II, Kozhikode. The two others are defendant's mother and wife. Ext.B5 deposition is in connection with the above said complaint. The complaint is in respect of the property dispute which immediately arose after the death of Kandar. The complaint is that the defendant and other accused trespassed into the plaint schedule property and reduced the same into their possession. She testified in Ext.B5 that she did not went to Kandar's house to pay homage to deceased Kandar. She testified that she did not went to his house on his death nor had occasion to see his dead body. She testified that the defendant had met the expenses in connection with the death of Kandar and that she is residing along with her daughter for the last three years. 11. The evidence tendered by PW1, DW1 and Ext.B5 deposition of deceased first plaintiff would prove the strange relationship between the deceased Kandar and his mother. The evidence of PW1 and DW1 would show that the deceased mother S.A.No.575 Of 1996 ::8:: had no occasion to reside with his son at least for a period of 15 years prior to the death of Kandar. At the same time, the evidence tendered by DW1 would go to show that his father died while he was in his mother's womb that he is the only surviving male member in the family after Kandar. It has also come out in evidence that the deceased Kandar looked after him as his own son and provided him with education, care and protection. The evidence also reveals that after his schooling the defendant worked with deceased Kandar as carpenter for many years and he was looked after by the deceased Kandar. 12. The trial court appreciated the above said circumstances. The trial court also believed the evidence of DWs 2 & 3 who are the attesting witnesses. On that basis the trial court held that the aforesaid circumstances along with the evidence of DWs 2 & 3 lead only to the presumption that Ext.B1will was executed by deceased Kandar. The trial court also observed that the case pleaded in the plaint that the deceased first plaintiff was residing along with Kandar in plaint B schedule house is proved to be a false version in the light of the testimony of additional 5th plaintiff as PW1 who testified that the deceased S.A.No.575 Of 1996 ::9:: first plaintiff was residing with her daughter for more than 15 years before the death of Kandar. The trial court also discussed the circumstances leading to the filing of the criminal complaint against the defendant. The trial court also observed that in Ext.B5 deposition the deceased first plaintiff in chief examination deposed that she was residing with Kandar in the house at the time of his death. But in cross-examination she deposed that when she knew about the death of her son she went to tarawad house and not to Kandar's house. The trial court also noted the testimony in Ext.B5 stating that she was residing along with her daughter for the last three years. The trial court observed that the version of the first plaintiff before the criminal court is contradictory in several respects and it is contrary to the averments in the plaint and that the evidence shows that she has not resided along with Kandar during the time of his death. The trial court also on evidence found that the first defendant had incurred the necessary expenditure on the death of Kandar. The trial court also noted the contradiction in the testimony of PW1 regarding the meeting of expenses for the ceremonies in connection with the death of Kandar. The plaintiffs' stand was S.A.No.575 Of 1996 ::10:: that the defendant had nothing to do with Kandar and the expenses for the ceremonies after the death of Kandar was met by them. In cross-examination PW1 testified that the defendant used to come to the house of Kandar after the death of Kandar and that he has met the expenses for the ceremonies. The trial court also relied on the evidence of the defendant that even while he was a small child he was looked after by Kandar. He was sent to school by Kandar. He was doing the work of carpentry with Kandar. It has also come out in evidence that though the defendant started to live separately along with his wife and children, eight months before the death of Kandar he started to reside with Kandar as requested by Kandar. 13. The defendant as DW1 testified that the deceased Kandar before his death handed over Ext.B1 will and all the records including the title documents to the defendant, that first plaintiff made a criminal complaint before the police alleging trespass, that the police had forced him to hand over the documents to the plaintiff in the police station. The trial court also noted that it is proved by Ext.B2 that the documents with respect to the property were handed over to the first plaintiff by S.A.No.575 Of 1996 ::11:: the defendant in the presence of police. The details of the documents handed over were also given in Ext.B2. The trial court observed that it is apparent by Ext.B2 that the documents produced by the plaintiffs were handed over by the defendant from the police station. The trial court also observed that the plaintiffs have not stated anything as to how the documents came to be in the possession of the defendant and under what circumstances they were handed over to them from the police station. DW1 testified before the court that he handed over all the documents except the will and the purchase certificate under compulsion from the police authorities. He also testified that he has not handed over the will due to apprehension that it will be destroyed. The trial court observed that the said explanation seems a reasonable and acceptable explanation and is more probable because he has kept the purchase certificate also with him. Ext.B4 is the purchase certificate produced by the defendant. Ext.B3 is the receipt issued by the plaintiff at the police station itself on her receiving Rs.445/- from the defendant. The amount mentioned in Ext.B3 receipt is said to be the balance amount belonging to Kandar available in the house. S.A.No.575 Of 1996 ::12:: 14. The requirement of onus of proof of will is on the propounder of the will is well settled. No doubt, it is for the propounder to prove the will. The burden of proof lies with the party affirming the execution of the will. In order to prove due execution of the will, the propounder has to prove that the testator has signed the will in the presence of two witnesses and that they signed the documents in the presence of the testator. In this case the execution of the will was proved by defendants 2 & 3. They have testified before the court that the testator has signed the will in the presence of DWs 2 & 3 and they themselves signed in the presence of the testator. 15. Once it is proved that the will has been executed by the executant in the presence of two witnesses and they have signed in the presence of each other and the executor has got testamentary capacity, the burden of proof shifts on the persons who alleged that the will is a forged one or was executed due to practice of fraud, undue influence etc. Ext.B1 will is the document. It is proved that Ext.B1 is a document properly authenticated, recorded and signed in the presence of witnesses. Therefore it can be presumed that it was properly executed. S.A.No.575 Of 1996 ::13:: 16. I have already discussed the pleadings in the written statement regarding the execution of the will. I have also stated that the plaintiff has neither cared to file a replication either denying the execution of the will or alleging suspicious circumstances surrounding the execution of the will or alleging that the testator has no testamentary capacity to execute the will. There is no pleading in the plaint nor the plaintiff cared to amend the pleadings after the filing of the written statement inserting necessary averments denying the execution of the will and alleging suspicious circumstances surrounding the execution of the will. In effect, it is a case where there is no pleading at all on the part of the plaintiff regarding the denial of execution, alleging suspicious circumstances or about the testamentary capacity of the testator. 17. The learned counsel for the appellant/defendant brought to the notice of this Court the decisions of the Apex Court reported in Savithri v. Karthyayani Amma [2007(4) KLT 811 (SC)], Ramabai Padmakar Patil (dead) by LRs and others v. Rukminibai Vishny Vekhande and Others (AIR 2003 SC 3109) and the decision of the Division Bench of this S.A.No.575 Of 1996 ::14:: Court in Joseph v. Ippunni (2007(4) KLT 853) and George v. Varkey (2004(1) KLT 21). In all the aforesaid decisions, the principle stated in the preceding paragraphs are laid down. The learned counsel also brought to the notice of this Court the decisions reported in Baby v. Sebastian (2007(3) KLT 885), Sunil and Vasanth Architects and Consulting Engineers and another v. Tata Ceramics Ltd. (AIR 1999 Kerala 88), Kannan and others v. Chirudu and others (AIR 1960 Kerala 93). In the decision reported in Baby's case (supra) this Court observed that the practice of filing of replications by way of answering defendants' pleas in their written statements and of filing of rejoinder by defendants by way of answer to the contentions raised by the plaintiffs through their replications is in vogue in various parts of the State. It was also held that in common law pleading also, the word “replication” is in usage and the same means reply made to the defendant's plea or answer. In the light of the contentions raised by the defendant in the written statement as regards the execution of Ext.B1 will, the plaintiff ought to have filed replication or ought to have amended the plaint inserting necessary averments either denying the S.A.No.575 Of 1996 ::15:: execution of the will or pleading suspicious circumstances surrounding the execution of the will. I have gone through the evidence of PW1. Even in chief examination also he has not testified any suspicious circumstances leading to the execution of the will. Only a stray sentence stated in chief examination that “it is not correct to say that Kandar has executed the will in favour of the first defendant and that no such will was executed”. 18. Learned counsel for the respondent/plaintiff brought to the attention of this Court the decision reported in H.Venkatachala Iyengar v. B.N.Thimmajamma and others (AIR 1959 SC 443). The said decision also deals with the proof of will and the burden of proof which is the basic decision which was followed by the Apex Court and High Courts in all the later decisions. The decisions reported in K.Laxmanan v. Thekkayil Padmini and others (2009(1) SCC 354) and Girijanandini Devi and others v. Bijendra Narain Choudhary ((AIR 1967 SC 1124) also deals with the onus of proof and manner of proving the will. 19. The trial court discussed and appreciated the evidence on record in detail and arrived at the conclusion that Ext.B1 is S.A.No.575 Of 1996 ::16:: proved to be validly executed will. The court also held that the defendant has discharged his burden of proving the will and therefore held that the plaintiff is not entitled to any relief. 20. The lower appellate court disbelieved the evidence of Dws 2 & 3 and observed that their evidence appears to be quite unnatural and improbable. The lower appellate court negatived the findings of the trial court after disbelieving the evidence tendered by DWs 1 to 3. I do not find that the lower appellate court is justified in reversing the findings of the trial court. This is a case where the plaintiffs have not pleaded anything against the execution of the will. They have failed to prove any suspicious circumstances surrounding the execution of the will. In effect there is neither pleading or proof regarding non- execution of the will nor about the suspicious circumstances surrounding the execution of the will. This is a case where the execution of the will was proved by citing witnesses and the defendant has also proved that the will was executed by deceased Kandar in the normal circumstances. The evidence tendered by DW1 is in no way discredited during his cross- examination as well. The evidence tendered by the defendant, S.A.No.575 Of 1996 ::17:: his witnesses, the documents produced and the circumstances strengthens the execution of the will by deceased Kandar. The trial court has considered all the materials on record in detail and arrived at the right conclusion. The reasons stated by the trial court are negatived by the lower appellate court on an irrelevant consideration of the evidence and circumstances and by non- consideration of relevant facts. The lower appellate court reversed the findings of facts arrived at by the trial court by ignoring the vital documents. There is no justification for the lower appellate court not to accept reasonable findings entered by the trial court. The findings of the lower appellate court are not based on proved facts or evidence and I find that the conclusion arrived at by the lower appellate court is not justified on facts and evidence. The lower appellate court also overlooked the oral and documentary evidence and its bearing on the rights of the parties. In the circumstances, this Court is of the view that the judgment and decree passed by the lower appellate court have to be interfered with. S.A.No.575 Of 1996 ::18:: In the result, the appeal is allowed, judgment and decree passed by the lower appellate court is set aside and the decree and judgment passed by the trial court is restored. No order as to costs. HARUN-UL-RASHID, Judge. bkn/-