IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 8TH APRIL 2009 / 18TH CHAITHRA 1931 AS.No. 606 of 1995(C) --------------------- OS.36/1991 of SUB COURT, OTTAPPALAM .................... APPELLANT/PLAINTIFF: -------------- MURALEEDHARAN, S/O.SARASWATHI AMMA, KUNNAMCHATH HOUSE, KAPPUR AMSOM, KOLLANNUR DESOM OTTAPALAM TALUK, PALGHAT DISTRICT. BY ADV.MS. PREETHY KARUNAKARAN MS.JAYASREE S. RESPONDENT/DEFENDANT: --------------- CHANDRIKA S/O. MELEPAT MADHAVI AMMA, CHATHANNUR AMSOM, PERUNKKANNUR DESOM, OTTAPALAM TALUK, PALGHAT DISTRICT. ADV. MR. SURESH KUMAR KODOTH MS.C.V.BINDU THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 08/04/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------------- A.S. No.606 OF 1995 -------------------------------------------------- Dated this the 8th day of April, 2009 J U D G M E N T Plaintiff in O.S.36 of 1991 on the file of Sub Court, Ottapalam is the appellant. Respondent is the defendant. Suit was filed for recovery of possession on the strength of title. The plaint schedule property admittedly originally belonged to deceased Chandrasekharan alias Sekharan Nair. Respondent is admittedly his wife. It is also admitted case that they contracted the marriage and relatives of Sekharan Nair did not participate in the marriage. They were not even visiting the husband and wife thereafter. Sekharan Nair died on 1.8.1990 due to cancer. He was treated for cancer first at Medical College, Thrissur and then at Regional Cancer Centre, Thiruvananthapuram. Appellant claimed title to the plaint schedule property under Ext.A8 registered will dated 11.6.1990. According to the appellant Sekharan Nair executed Ext.A8 registered will out of his free will and volition bequeathing his properties in his favour, the testator being the widower and the respondent the wife was not looking after the ailing Sekharan Nair. Respondent resisted the suit contending that Sekharan Nair would not have A.S.606/95-C 2 disinherited her by executing the will. It was contended that Ext.A8 will, even if executed by Sekharan Nair, is vitiated by undue influence and was not executed by Sekharan Nair out of his free will and volition in a sound disposing state of mind. It is contended that on the death of Sekharan Nair his right devolved on the respondent alone and therefore appellant is not entitled to the decree sought for. 2. Learned Sub Judge framed necessary issues. On the side of the appellant he was examined as PW1 and one of the attesting witnesses to Ext.A8 will was examined as PW2 and an official witness from Guruvayoor Devaswom was examined as PW3. On the side of the respondent was examined as DW1. Exts. A1 to A16 series and X1(a) and (b) were marked on the side of the appellant and Ext.B1 was marked on the side of the respondent. Learned Sub Judge on the evidence found that Ext.A8 is not proved to be a true and genuine will executed by deceased Sekharan Nair out of his free will and volition and appellant, the legatee had taken an active part in execution of the will and the will was executed by Sekharan Nair at a time when he was treated for cancer and the suspicious circumstances were not removed by the appellant. It was found that appellant has no title to the plaint schedule property under A.S.606/95-C 3 Ext.A8. The suit was dismissed. It is challenged in the appeal. 3. Learned counsel appearing for appellant and respondent were heard. 4. Learned counsel appearing for appellant argued that learned Sub Judge did not appreciate the evidence in the proper perspective. Learned counsel had taken me through the entire evidence of PWs 1 to 3 and submitted that the evidence of DW1 is contrary to the evidence of PW1. It was pointed out that in the written statement there is no specific case that Sekharan Nair did not execute Ext.A8 will and the only contention was that it was not executed out of his free will and volition and sound disposing mind and respondent did not establish that Ext.A8 is vitiated and therefore the trial court should have upheld the title under Ext.A8. It was argued that Ext.A8 will was proved by the evidence of one of the attesting witnesses who is none other than a classmate of deceased testator and there is no reason to disbelieve his evidence and evidence of PW2 establishes that deceased testator executed Ext.A8 out of his free will and volition and in his sound disposing state of mind and so appellant has title to the property. 5. Learned counsel appearing for respondent argued that evidence was properly appreciated by the trial court and A.S.606/95-C 4 there is no reason to interfere with the appreciation of evidence and there are valid and sufficient reasons to reject Ext.A8 will. 6. Ext.A8 is a registered will. It is seen executed and registered on 11.6.1990. Ext.A8 shows that the will was executed disinheriting his wife for the sole reason that she is not looking after the testator. Ext.A8 specifically states that he is ailing for two years prior to the date of its execution and the wife is not looking after him and it is the appellant, the legatee there under who is looking after him and therefore Ext.A8 was executed. According to the appellant the deceased testator was living with respondent the wife and while so he sent words to the appellant to take him to their house and one year prior to the date of execution of Ext.A8, appellant took the deceased testator from the house of respondent along with a box which contained the records of the deceased testator including the title deed of the property to his house and thereafter it was the appellant who was maintaining and looking after the testator and while so Ext.A8 was executed out of his free will and volition. It is the case of the respondent that she was looking after the husband properly and one month prior to the date of Ext.A8, appellant came there and took her husband to their house, stating that he could give better treatment and at that time the box containing A.S.606/95-C 5 the entire records was also taken away. It is the specific case of the appellant that after the testator was taken from the house of the respondent, respondent did not even enquire about her husband much less take care of him. 7. Ext.A16 series are the treatment records of deceased Sekharan Nair. Ext.A16 the discharge summary issued from the Regional Cancer Centre, Thiruvananthapuram which shows that Sekharan Nair was admitted there on 24.1.1990 and was discharged on 24.2.1990 with a direction to attend for follow up on 27.3.1990. According to the appellant it was he who had taken the deceased testator to Thiruvananthapuram. Ext.B1 was produced by the respondent. It is the card issued by Regional Cancer Centre, Thiruvananthapuram to the deceased testator pursuant to his discharge under Ext.A16. Ext.B1 shows that he was originally treated at Regional Cancer Centre, Thiruvananthapuram on 18.1.1990 and thereafter was advised to appear on 27.3.1990. Ext.B1 also shows that on 28.3.1990, Ext.B1 card was issued with advice for check up on 27.3.1990 as seen in Ext.A16, and after the check up, he was advised to come on 3.5.1990. Ext.B1 produced by the respondent establish that it was the wife of the testator who was taking him for treatment to R.C.C., Thiruvananthapuram. Appellant has not explained how A.S.606/95-C 6 the respondent could get possession of Ext.B1, unless it was the respondent who had taken her husband to Regional Cancer Centre, Thiruvananthapuram. Ext.B1 could have been in the possession of the respondent only for the reason that it was she, who had taken her husband to Thiruvananthapuram. If that be so, it is clear that up to 28.3.1990 it is the respondent who was taking care of the deceased testator Sekharan Nair. Though Ext.A16 series were produced by the appellant, as is clear from the evidence those documents are available with the deceased, which were kept in the box which was admittedly taken by the appellant when the deceased was being taken to their house. If that be so, can only be found that till 28.3.1990, it was the respondent who was maintaining and taking care of the ailing husband. With this fact in mind Ext.A8 is to be appreciated. 8. The only reason shown in Ext.A8 for disinheriting the wife and bequeathing the properties to the nephew by executing the will is for not looking after the husband. When Ext.B1 establishes that till two months prior to the date of execution of Ext.A8 will, the wife was looking after the deceased testator and he was even taken to Thiruvananthapuram, the sole reason shown for executing Ext.A8 will is proved to be incorrect, it is clear that the said reason was shown and the will was executed A.S.606/95-C 7 in favour of the appellant not in exercise of his free will and volition. An ailing who was looked after well by the wife will not execute a will disinheriting her and that too on false grounds. It is more so when the propounder himself has taken active part in execution of the will. That casts serious doubt on the genuineness of Ext.A8 will and that it was executed by the deceased out of his free will and volition. 9. After the execution and registration of Ext.A8 will on 11.6.1990, Ext.A4 O.P. for divorce was filed before Sub Court, Ottapalam. It is seen prepared on 14.6.1990 and filed before the court on 15.6.1990. The reason shown for divorce by the testator is that the deceased had undergone vasectomy operation and his wife, the respondent, is having illicit relationship and was pregnant at that time and that pregnancy is the result of adultery. If what is stated in Ext.A4 is true and the OP for divorce was actually instituted by the deceased testator, out of his free will and volition, Ext.A8 would not have been prepared and executed as seen therein. What is stated in Ext.A4 is that through the appellant, his nephew, deceased testator got knowledge that his wife is pregnant from somebody else and therefore that O.P. for divorce was filed. If that be the case, in the absence of positive case that deceased got knowledge of the A.S.606/95-C 8 pregnancy and the alleged adultery only after execution of Ext.A8, and that case is true in the ordinary human conduct instead of stating that the wife is not taking care of him he would have stated the adulterous life and consequent pregnancy of the respondent for disinheriting her. If the testator was aware that his wife was dishonest and got pregnant from somebody else, it would have infuriated the testator and if that is true it would have been a valid reason for disinheriting the wife by executing a will. On the other hand stating a false reason and the conspicuous absence of such a case in Ext.A8 establishes that deceased testator was unaware of such a fact when Ext.A8 was executed. It is possible that Ext.A4 OP was subsequently got prepared by the appellant, who is the legatee under the will to get support for Ext.A8. It is more so when Ext.A4 O.P. was filed the testator had already disinherited the wife under Ext.A8. He was almost at the last days of his life. In the ordinary course at that stage he will not prefer to have a divorce. In such circumstances the O.P. for divorce could also be result of the undue influence of the appellant. All these facts casts genuine doubt on the execution of Ext.A8 will by the testator out of his free will and volition. 10. As rightly found by the learned Sub Judge the medical A.S.606/95-C 9 records establish that the deceased Sekharan Nair was suffering from cancer to his knowledge for two years and three months prior to the date of execution of Ext.A8 will. Ext.A16 establishes that there was complete carcinoma oesophagus and the vocal cord was immobile and food has to be supplied by castrostomy. It is such a person who is allegedly executed Ext.A8 will disinheriting his wife. If such a will is to be upheld, there should be satisfactory evidence to establish the sound disposing state of mind of the testator on the date of its execution. There was no satisfactory evidence. 11. Though PW2 one of the attesting witnesses was examined to prove the execution, it is clear from the evidence of PW2 that his evidence cannot be relied on. He claims to be the classmate of the deceased testator. According to PW2 he was sent for by the deceased testator to be present at the time of execution of the will and he is residing 1 Km away from the house of the deceased testator and he had witnessed the execution. Though appreciating the evidence of PW2 mechanically, it is possible to found that he had seen the testator as well as the other attesting witnesses signing Ext.A8 and the attesting witnesses also signed it in the presence of the testator, evidence of PW2 is not trustworthy. It is clear that PW2 is A.S.606/95-C 10 deposing to help the appellant. From the evidence of PW1 it is clear that PW2 had accompanied the deceased testator to Pattambi and thereafter to Ottapalam for filing the divorce OP. It shows the active part taken by PW2 in all the transactions. Evidence of PW2 with PW1 establishes that the legatee under Ext.A8 had taken an active part in getting the will executed by the deceased, which is an added circumstance to the doubt, its genuineness. When the entire evidence is appreciated in the proper perspective, finding of the trial court that appellant did not establish that Ext.A8 will was executed by the deceased testator in a sound disposing state of mind is perfectly correct. I do not find any reason to interfere with the finding of the learned Sub Judge that appellant has no title to plaint schedule property and is not entitled to the decree sought for. Appeal is dismissed. M. SASIDHARAN NAMBIAR, JUDGE okb