IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 4TH FEBRUARY 2010 / 15TH MAGHA 1931 RSA.No. 1256 of 2008() ---------------------- AS.39/2006 of ADDL.SUB COURT, ALAPPUZHA OS.1180/1999 of ADDL.MUNSIFF COURT, ALAPPUZHA .................... APPELLANT/APPELLANT/IST DEFENDANT: ---------------------------------------- P.N.GOPALAN ACHARY ALIAS MANIYAN, S/O.LATE NARAYANAN, AGED ABOUT 72 YEARS, RESIDING AT PUTHEN PARAMBU (H), PUNNAPRA P.O. PARAVOOR VILLAGE, ALAPPUZHA. BY ADV. SMT.C.G.BINDU SMT.C.G.AJITHA RESPONDENT(S): RESPONDENTS/PLAINTIFFS AND DEFENDANTS 2 TO 5: -------------------------- 1. P.N.PARAMESHWARAN ACHARI, AGED 67 YEARS, S/O.NARAYANAN, KATTUNGAL VELI, PUNNAPRA P.O., ALAPPUZHA. 2. N.SUKUMARAN, AGED 48 YEARS, S/O.NARAYANAN, PUTHEN PARAMBU, PUNNAPRA P.O., ALAPPUZHA. 3. P.N.PURUSHOTHAMAN ACHARY, S/O.NARAYANAN, AGED ABOUT 60 YEARS, P.B.NO.42, SHINAS 324, SULTANATE OF OMAN. 4. P.N.VISWANATHAN, S/O.NARAYANAN, AGED ABOUT 57 YEARS, P.B.NO.42, SHINAS 324, SULTANATE OF OMAN. 5. OMANA RADHAKRISHNAN, D/O.NARAYANAN, AGED ABOUT 53 YEARS, PADMA VILASAM, MAYITHARA P.O., CHERTHALA. 6. KUMARI RADHA @ RADHA JOSHI, D/O.NARAYANAN, AGED ABOUT 44 YEARS, MEECHERIAKATHU, EDAMATTOM P.O., BHARANANGANAM, PALAI. ADV. SRI.K.S.HARIHARAPUTHRAN FOR R2 SRI.M.D.SASIKUMARAN FOR R2 SRI.GEORGE MATHEW FOR R2 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 04/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- R.S.A.No.1256 of 2008 -------------------------------------- Dated this the 4th day of February, 2010. JUDGMENT Defendant No.1 in a suit for partition is the appellant before me challenging preliminary decree and judgment passed by the trial court as confirmed by the first appellate court. Short facts necessary for consideration of the substantial questions of law framed for a decision are: Plaintiff Nos.2 and 3 and defendant Nos.1 to 5 are the children of deceased plaintiff No.1 and the late Narayanan. Suit property with the residential building thereon belonged to the late Narayanan as per Exts.A1 and A2. According to the plaintiffs, building was constructed by the said Narayanan who died intestate in the year 1985. Plaintiffs are residing in the residential building in the suit property. While so defendant No.1 started occupying a portion of the building. Plaintiffs who were unwilling to continue co-ownership over the suit property demanded their 3/8th shares and separate possession of that share. Defendant Nos.2 to 5 remained exparte. Appellant/defendant No.1 contested the suit. He stated that he was engaged in carpentry work with his father since 1955 onwards even at a time he was aged about 19 years. Later, he worked as carpenter for some time in the gulf countries also. Suit property was purchased using his contribution as well which amounted to more than Rs.50,000/-. In the year 1985, there was an oral partition and defendant No.1 was permitted to construct two rooms and a shed for his residence as well as carpentry work. The said building and shed are not RSA No.1256/2008 2 part of the residential building in the suit property. On 20.6.1999 there was a mediation between parties following the dispute between sharers and an agreement was executed as per which plaintiff No.3 agreed to give seven cents to defendant No.1. He claimed that the suit property is not partiable. During pendency of the suit plaintiff No.1 died on 12.10.2002. Thereafter, immediately before the case came up for trial in the list on 7.2.2005 plaintiff Nos.2 and 3 produced Ext.A4, Will allegedly executed by plaintiff No.1 bequeathing her share in the suit property in favour of plaintiff No.3. Consequent to that, defendant No.1 filed application to amend his written statement. Application was opposed by plaintiff Nos.2 and 3. Trial court however allowed the application and accordingly defendant No.1 was permitted to amend his written statement. In the amended written statement defendant No.1 contended that from 1998 onwards plaintiff No.1 on account of mental retardness has been in an unconscious state unable to understand things, she was not able to execute a Will as now propounded by plaintiff No.3 and that the said Will is the result of forgery and misrepresentation. Learned Munsiff among other things framed an issue regarding genuineness of the Will in question. Parties adduced evidence regarding that. PW4 is defendant No.3 who remained exparte and one of the attestors in the Will. PW3 is the attesting and identifying witness. Trial court found in favour of due execution and attestation of Ext.A1, against the plea of oral partition raised by defendant No.1 and accordingly passed a preliminary RSA No.1256/2008 3 decree allotting the share of deceased plaintiff No.1 to plaintiff No.3. That was confirmed by the first appellate court. Hence the Second Appeal. Following substantial questions of law are framed for a decision: i. Is not Ext.A4, Will is affected by lis pendens? ii. Are the courts below justified in holding that the appellant's residence is part and parcel of the main building after ignoring all the documentary as well as oral evidence including Ext.C1, commission report? iii. Are not the decrees of the courts below perverse when it accepted Ext.A4, Will in toto ignoring all the principles of law governing a Will? iv. Is Ext.A4, Will is properly constituted and genuine and is it vitiated by fraud and undue influence exerted on the very old and mentally incapable mother by plaintiff No.3 who is a homoeo doctor and his wife is a lawyer who were residing along with the deceased plaintiff No.1 - mother? v. Are the courts below justified in allotting 2/8 shares to plaintiff No.3 when he has not even cared to enter the box to prove the genuineness of Ext.A4, Will? RSA No.1256/2008 4 It is contended by learned counsel for appellant/defendant No.1 that finding of courts below regarding oral partition is not justifiable. So far as alleged execution and attestation of Ext.A4, Will is concerned it is contended that execution and attestation of Ext.A4 are shrouded in suspicious circumstances which extended upto its late production in the court notwithstanding death of plaintiff No.1 on 12.10.2002. It is contended that evidence of PWs 2 to 4 regarding alleged execution and attestation of the Will cannot be believed. There is no evidence regarding sound disposing mind of the testator (deceased plaintiff No.1) during the relevant time. According to the learned counsel, possibility of deceased plaintiff No.1 being addicted with homoeo medicines containing high doze of alcohol given by plaintiff No.3 who is a homoeo medical practitioner and who was treating plaintiff No.1 cannot be ruled out. It is contended that consequent to the introduction of Ext.A4 in the case, plaintiff Nos.2 and 3 did not care to amend the plaint suitably and instead, they chose to oppose the application preferred by defendant No.1 for amendment of the written statement contending that deceased plaintiff No.1 was hale and healthy until her death. At any rate, consequent to appellant/defendant No.1 amending written statement plaintiff Nos.2 and 3 have not filed a replication and hence it must be taken that averments in the amended written statement regarding genuineness of the Will are not disputed. It is contended that even if defendant Nos.2 to 5 remained exparte initially, plaintiff Nos.2 and 3 were obliged to take RSA No.1256/2008 5 notice to them after Ext.A4, Will was introduced in the case since in the absence of Ext.A4, defendant Nos.2 to 5 would also have got an increased share in the suit property. Learned counsel contends that defendant No.1 had filed a petition in the trial court requesting that court to compare disputed signatures of deceased plaintiff No.1 in Ext.A4 with her admitted signatures in the proceedings in the court, but no order thereon has been passed by learned Munsiff nor did learned Munsiff compare the signatures as requested. First appellate court also failed in doing so. According to the learned counsel though application filed by defendant No.1 was requesting the court to compare disputed signatures with admitted signatures, in the facts and circumstances of the case and since there is substantial dissimilarity with the two sets of signatures, trial court ought to have taken the assistance of an expert regarding the authenticity of the disputed signatures. Learned counsel has placed reliance on the decisions in Rani Purnima Debi and another v. Kumar Khagendra Narayan Deb and another (AIR 1962 SC 567), Smt.Indu Bala Bose and others v. Manindra Chandra Bose and another (AIR 1982 SC 133), State of Maharashtra v. Sukhdeo Singh and another (AIR 1992 SC 2100), R.Radhakrishnan Nair v. Sreedevi and others (1993 (2) KLJ 670), Ananda Bhai v. Kanaka RSA No.1256/2008 6 Bhai (1994 (1) KLT 474), Daulat Ram and others v. Sodha and others((2005) 1 SCC 40), Sridevi and others v. Jayaraja Shetty and others((2005) 2 SCC 784) and Bharpur Singh v. Shamsher Singh (2009 (1) KLT SN.13). In response it is contended by learned counsel for respondent No.2/plaintiff No.3 that issue regarding due execution and attestation of Will is purely one of fact based on appreciation of evidence which the courts below answered in favour of plaintiff Nos.2 and 3. Hence that cannot involve any substantial question of law requiring consideration or interference by this Court. Alternatively it is argued by the learned counsel that due execution and attestation of Ext.A4 are proved by sufficient evidence and that there is no suspicious circumstance surrounding the said Will. According to the learned counsel, contention raised by defendant No.1 being one of forgery and misrepresentation, burden lay with defendant No.1 to prove the same. Learned counsel would argue that once testamentary capacity of the testator and signature in the disputed Will are proved, then it is for the contesting defendant to prove that the Will is not genuine or fraudulently created. Learned counsel contended that there is no evidence to show that deceased plaintiff No.1 was not having testamentary capacity during the relevant time. Learned counsel further contended that so far as alleged oral partition is concerned, that also did not present any substantial question of law since the RSA No.1256/2008 7 courts below on evidence on record found against the plea. According to the learned counsel, the building where defendant No.1 is now staying formed part of the residential building constructed by deceased Narayanan in the suit property which defendant No.1 also has practically admitted in his objection to the report of advocate commissioner. Reliance is placed on the decisions in Rani Purnima Debi and another v. Kumar Khagendra Narayan Deb and another (AIR 1962 SC 567), Smt.Indu Bala Bose and others v. Manindra Chandra Bose and another (AIR 1982 SC 133), Pappoo v. Kuruvilla (1994 (2) KLT 278), Varghese v. Oommen (1994 (2) KLT 620), Daulat Ram and others v. Sodha and others ((2005) 1 SCC 40), Sridevi and others v. Jayaraja Shetty and others ((2005) 2 SCC 784) and Velayudhan Nair v. Kalliyanikutty Amma (2006(1) KLT 884). 2. Before going into the substantial questions of law framed for a decision I would refer to the evidence on record so that it would help this Court to find whether finding of the courts below is based on appreciation of evidence and did involve any substantial question of law. It is not disputed that the suit property originally belonged to the deceased Narayanan, father of plaintiff Nos.2 RSA No.1256/2008 8 and 3 and defendant Nos.1 to 5. It is also not disputed that the residential building was constructed by deceased Narayanan though defendant No.1 has a contention that for the purchase of properties and for construction of the residential building, he had contributed much. Reliance is placed on Ext.B2 series. True that Ext.B2 series, 28 in numbers would show that certain amounts were sent by defendant No.1 at a time when he was working abroad as carpenter either to the late Narayanan or defendant No.3 during 1981 to 1987. But it is not disputed that during the said time all the family members were residing in the residential building in the suit property and it is also not disputed that during that time defendant No.1 had also set up a family. There is no evidence to show that wife and children of defendant No.1 were staying elsewhere. In such a situation the elder son working abroad if had sent some money to the father or defendant No.3 that cannot ipso facto mean that acquisition of the suit property or construction of residential building in that property was using the funds of defendant No.1 also so that he got any right over the suit property or building. 3. So far oral partition claimed by defendant No.1 is concerned, his contention is that in the year 1985 there was such a partition effected by his father, the late Narayanan and following that he was permitted to put up two rooms and a shed in a portion of the suit property. He would further say that RSA No.1256/2008 9 following a dispute there was a settlement on 20.6.1999 in which plaintiff No.3 agreed to give him seven (7) cents of land. If there was a settlement on 20.6.1999 as per which plaintiff No.3 agreed to give seven (7) cents to defendant No.1, I think the plea of oral partition in the year 1985 has fall to the ground, for, if such an oral partition took place in the year 1985 there was no necessity for further mediation and settlement on 20.6.1999 consequent to which plaintiff No.3 agreed to give seven cents of land to defendant No.1. since at that time Narayanan was no more and plaintiffs and defendants 1 to 5 were co-owners of the suit property plaintiff No.3 could not also unilaterally decide to give seven (7) cents to defendant No.1. As regards the alleged oral partition what is available is only the evidence of defendant No.1 as DW1. Courts below considered the evidence and came to the conclusion that oral partition set up by defendant No.1 is not correct. That in my view does not involve any substantial question of law. 4. Then the question is whether the structure now seen on the northern side of the residential building and the shed are constructed by defendant No.1 as claimed by him. Plaintiffs have a contention that the said structure formed part of the residential building, defendant No.1 committed mischief by pulling down a portion of the residential building and consequent to that, deceased plaintiff No.1 had lodged a complaint to the police against defendant No.1 alleging mischief against defendant No.1. There is evidence to RSA No.1256/2008 10 show that the structure is part of the main building. So far as the contention of defendant No.1 that it is separate building is concerned, the only item of evidence is Ext.B1, photocopy of ration card issued to defendant No.1. Learned counsel contended that unless there was a separate building having building number the supply authorities would not have issued a ration card for the building. In Ext.B1 house number is stated as 303 while the assessment number of the residential building in the suit property is 302. But it is not clear from Ext.B1 for which period it was issued, whether it was prior to or after the institution of the suit. Going by the age of defendant No.1 given in Ext.B1, possibility is that it was issued in the year 2003. In Ext.B1 age of defendant No.1 is given as 67 years. In the deposition of defendant No.1 as DW1 when he was examined in the year, 2005 his age is given as 69. If that be so, Ext.B1 could have been issued in the year 2003, ie. during the pendency of the suit. Ext.B1 cannot advance the case of defendant No.1 that the structure where he is residing is a separate building. The panchayat assessment for the said building is not produced. On the other hand it has come in evidence that the electric and water connection to that structure is drawn from the main building. It has also come in evidence that alleging mischief on the part of defendant No.1 in pulling down a portion of the main building deceased plaintiff No.1 filed a complaint to the police against defendant No.1. Thus there is no acceptable evidence to RSA No.1256/2008 11 show that the structure where defendant No.1 is staying is separate from the residential building in the suit property. Finding of the courts below in that regard is based on evidence and involved no substantial question of law. 5. The crucial question is whether due execution and attestation of the disputed Will is proved by propounder. One substantial question of law framed for a decision is whether Ext.A4 is hit by rule of lis pendens. I am afraid no such substantial question do arise for decision since it is not a case where during pendency of the suit any transfer was effected in favour of a third party. Plaintiff No.1, mother allegedly bequeathed her share in favour of plaintiff No.3, son. Therefore the question of Ext.A4 being affected by the rule of lis pendens under Section 52 of the Transfer of Property Act does not arise. 6. So far as alleged execution and attestation of Ext.A4 are concerned, PWs 3 and 4 are examined by plaintiff Nos.2 and 3. PW3, I stated is also an identifying witness. PW3 who is distantly related to the parties hereto stated that deceased plaintiff No.1 is known to him for about 40 years and that it was on the request of plaintiff No.1 he attested Ext.A4. He would also say that she was physically and mentally sound at the time of execution of Ext.A4. But in cross examination he stated that he does not know about the age of deceased plaintiff No.1 at the time of execution of Ext.A4. He claimed that there was no RSA No.1256/2008 12 difference in the signature of deceased plaintiff No.1 in the vakkalath she filed in the trial court and in Ext.A4. According to him Ext.A4 was prepared at the office of one Gangadharan but he does not know where the office was. He claimed that he had not seen the Will being prepared. According to PW3, deceased plaintiff No.1 was under the care of her youngest son, plaintiff No.3 and hence deceased plaintiff No.1 told the witness that she is giving her share to plaintiff No.3. PW4 is the second attestor in Ext.A4 and concededly defendant No.3, another son of deceased plaintiff No.1. He stated that he was abroad for some time and when he came to the native place, as per instruction of deceased plaintiff No.1, the mother, he attested Ext.A4. He further stated that Ext.A4 was prepared by one Gangadharan. Himself, PW3 and deceased plaintiff No.1 were present at the time the Will was prepared. In cross examination in answer to the question where the Will was prepared, witness stated that himself, plaintiff No.1 and PW3 had been to the house of Gangadharan. But, PW4 also stated that he had not seen Ext.A4 being prepared. He however asserted that the Will after it was prepared was read over to deceased plaintiff No.1 at the office of the Sub Registrar. PW4 stated that deceased plaintiff No.1, his mother was hale and healthy at the time of execution of Ext.A4. RSA No.1256/2008 13 7. Contra evidence came from defendant No.1 as DW1 and the son of plaintiff No.2 as DW2. DW1 stated that the Will is the result of forgery and misrepresentation and created at a time when due to mental retardness from 1988 onwards deceased plaintiff No.1 was in unconscious state unable to understand anything or exercise proper discretion. DW2, son of plaintiff No.2 gave similar evidence and stated that deceased plaintiff No.1 had the illness of sleep walking (somnambulism) and the neighbours used to take her back to her house. It is the version of DWs 1 and 2 that for quite some time deceased plaintiff No.1 was shut up in a room in the house in the suit property. DW2 stated that deceased plaintiff No.1 was totally laid up from the year 2002 onwards. 8. One contention is regarding failure to send summons to defendant Nos.2 to 5 after the introduction of Ext.A4. I have already referred to the contention of learned counsel that defendant No.1/appellant in that regard supra. It is not disputed that defendant Nos.2 to 5 remained exparte initially in the suit and after Ext.A4 was introduced no fresh summons or notice was issued to them. Normally an exparte defendant is not entitled to get notice of further proceedings in the case. When defendant Nos.2 to 5 remained exparte, it followed that they had no objection for partition of the suit property in the way claimed by the plaintiff in the suit. True, Ext.A4 was introduced subsequently. RSA No.1256/2008 14 But when defendant No.3 was examined as PW2 to speak about the sound disposing mind of deceased plaintiff No.1, atleast he had notice of Ext.A4. But he did not come forward to set aside the exparte order against him and contest the suit. On the other hand going by the evidence of PWs 2 and 3, execution of the Will was known to all the children of deceased plaintiff No.1 except defendant No.1. Moreover contention that no summons or notice was issued to the exparte defendants subsequent to the introduction of Ext.A4 is not a plea which defendant No.1 could validly raise. He cannot challenge correctness of the judgment and decree on the ground that after introduction of Ext.A4 summons or notice were not issued to exparte defendant Nos.2 to 5. If defendant Nos.2 to 5 have a grievance that behind their back Ext.A4 was proved it is for them to challenge the decree. That defendant No.1 had made an application to issue summons to defendant Nos.2 to 5 but that was not done made no difference. 9. Now turning to the disposing state of mind of deceased plaintiff No.1, no doubt that is a matter which the propounder has to prove. Decision on the point say (H.Venkatachala Iyengar v. D.N.Thimmajamma and others (AIR 1959 SC 443) that due execution and attestation of the Will is to be proved by the testator. PWs 2 to 4 have given evidence regarding sound disposing state of mind of deceased plaintiff No.1. According to the RSA No.1256/2008 15 appellant/defendant No.1, deceased plaintiff No.1 was addicted with strong homoeo medicines with alcoholic contents applied by plaintiff No.3 and that also affected her mental capacity. It is admitted that plaintiff No.3 is a homoeo medical practitioner and he was looking after and treating deceased plaintiff No.1. But I am not persuaded to think particularly in the facts and circumstances of this case that she was drugged by plaintiff No.3 and was locked up in the room since the year, 1999 onwards particularly when defendant No.1 is staying just two metres away from the said room and he has not raised even his little finger against his mother being treated as above and locked up in a room. On the other hand it has come in evidence that even before institution of the suit deceased plaintiff No.1 had preferred a complaint to the police against defendant No.1 alleging mischief and in connection with that, he was summoned to the police station. DW2, witness for defendant No.1 has stated that in connection with the complaint deceased plaintiff No.1 along with her maid servant went to the police station in an autorickshaw. If that be so contention that she was drugged and locked up in a room is a story which cannot be swallowed even with a handful of salt. 10. It is pertinent to note that though the suit was filed in the year 1999 and defendant No.1 filed his written statement initially on 28.11.2000 until filing of additional written statement on 21.2.2005 defendant No.1 did not have a RSA No.1256/2008 16 contention that plaintiff No.1 could not have signed the plaint due to mental retardation. It is seen from the plaint and the vakkalath signed in favour of counsel for plaintiffs that deceased plaintiff No.1 has signed both on her own. When a client has signed the plaint and vakkalath in favour of counsel concerned in his presence, there is no reason why I should presume or infer that she had not so signed.