IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 11TH FEBRUARY 2009 / 22ND MAGHA 1930 AS.No. 518 of 1994(A) --------------------- OS.155/1990 of SUB COURT, KASARAGOD .................... APPELLANT/PLAINTIFF: -------------- JAYAMMA, W/O.THIMMAYYA RESIDING AT DASARAMOOLA IN NETTANIGE VILLAGE, KASARAGOD TALUK, P.O.NETTANIGE. BY ADV. SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE SRI.R.VIJAYAGOPAL SRI.K.JAYAKUMAR SRI.P.B.KRISHNAN SRI.HARISH R. MENON SRI.R.SURAJ KUMAR RESPONDENTS/DEFENDANTS: --------------- 1. SAVITHRI, W/O.MONAPPA RESIDING AT MULLERIA, KARADKA VILLAGE, KASARAGOD TALUK, P.O.MULLERIA 2. SUNIL, S/O.SAVITHRI, MINOR AGED 17, RESIDING AT DO.DO. 3. SUKESH, S/O.DO. MINOR AGED 16, RESIDING AT DO. DO. 4. SANDHYA, D/O.DO. MINOR AGED 14, RESIDING IN DO. DO. (RESPONDENTS 2 TO 4 ARE MINORS AND ARE REPRESENTED BY GUARDIAN AD LITEM, RESPONDENT NO.1 THEIR MOTHER) SRI.D.KRISHNA PRASAD THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 11/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. ------------------------------------------ A.S.NO.518 OF 1994 ------------------------------------------ Dated 11th February 2009 JUDGMENT Deceased appellant instituted O.S.155/1990 before Sub court, Kasaragod claiming partition and allotment of 1/5th share in the plaint A and B scheduled properties which admittedly originally belonged to her son Monappa who died on 27/1/1990. First respondent is his widow and respondents 2 to 4, their children. Upholding Ext.B1 Will executed by deceased Monappa whereunder he bequeathed all his rights in favour of his wife and children, suit was dismissed. Appeal was filed challenging the order. When the appeal was pending appellant died on 18/1/2001. Her brother, the petitioner filed I.A.1409/2006 to implead him as second appellant, I.A.1410/2006 to set aside abatement and C.M.A.596/2006 to condone the delay. As provided under Rule 5 of Order XXII of Code of Civil Procedure trial court was directed to determine the question whether petitioner in the applications is the legal AS 518/1994 2 representative of the appellant to implead his as the additional appellant. He claimed to get himself impleaded on the strength of registered Will 33/1990 of SRO, Badiadka allegedly executed by the deceased appellant on 20/10/1990. Before the Sub court petitioner was examined as PW1, the scribe was examined as PW3 and attestors as Pws.2 and 4. Learned Sub Judge on the evidence found that Ext.A1 registered Will, though proved to be executed, by the evidence of Pws.2 to 4, it is not established that Ext.A1 Will was executed by the deceased appellant out of her free will and volition in a sound disposing state of mind and therefore it is not proved to be a true and genuine Will. After receipt of the finding with learned Senior counsel appearing for petitioner and respondents were heard. 2. Learned Senior counsel submitted that fact that Ext.A1 registered Will was executed by the deceased appellant is proved by the evidence of Pws.2 to 4 and no vitiating circumstance was established by the respondents and therefore finding that Ext.A1 Will was not executed by the deceased appellant out of her will and volition is not sustainable and petitioner AS 518/1994 3 is entitled to get himself impleaded as second appellant. 3. Learned counsel appearing for respondents pointed out that Ext.A1 notice in the suit demanding a share in the properties belonging to deceased Monappa was sent on 9/8/1990 and as per reply notice dated 23/8/1990 respondents resisted claim based on Ext.B1 Will executed by the deceased Monappa and it is thereafter Ext.A1 Will dated 20/10/1990 was created and the suit was instituted on 12/11/1990. It is argued that the proved circumstance establish that Ext.A1 is not a true and genuine Will executed by deceased appellant out of her free will and volition and is only a document created by the petitioner, her brother to claim a share in the properties of the deceased Monappa, as Monappa pre-deceased his mother. Learned counsel also pointed out that when PW1 was cross examined, he did not deny the case that deceased appellant was suffering from neurological illness from 1989 onwards and evidence establish that she could not have gone to Badiadka first for giving instructions to prepare the Will and thereafter to execute the Will and though Pws.2 to 4 supported the AS 518/1994 4 petitioner, their evidence cannot be believed to prove that Ext.A1 Will was executed by deceased appellant out of her free will and volition. 4. True, if the evidence of Pws.2 to 4 is to be mechanically appreciated it could be said that they deposed that Ext.A1 Will was executed by deceased appellant in their presence as the Will was read over to the testator and the testator signed the Will in their presence and respondents 2 and 4 attested the Will in the presence of the testator. But as rightly found by the learned Sub Judge question is whether there is evidence to establish that deceased appellant voluntarily executed Ext.A1 Will out of her free will and volition and the suspicion is successfully removed. 5. When cross examined, petitioner as PW1 admitted that deceased appellant was under the treatment of Doctor Santhosh Raj and till his death it was Monappa, her son, who was taking the deceased appellant to the doctor. When PW1 was specifically asked whether deceased appellant sustained a fall in January 1988 and she sustained injury to her spine and was admitted as inpatient at Kasaragod AS 518/1994 5 Nursing Home, PW1 deposed that he was unaware of the fact. When he was further questioned whether from 1988 onwards deceased appellant had nuero problems and loss memory, PW1 did not deny the suggestion and only deposed that he does not know whether she was suffering from loss of memory. Ext.B1 the discharge summary issued from Kasaragod Nursing Home establishes that appellant had a fall in 1988 and was treated as inpatient in the hospital. From the evidence of PW1 it is absolutely clear that she needed help of somebody from 1988 onwards and was in a constant medical attention. It is such a person according to PW1 who had executed Ext.A1 Will without his knowledge. PW1 conveniently deposed that he was not at his house on the date of execution and registration of Ext.B1 Will as well as on the previous day and he had gone to his in-laws house. It was a clever attempt to explain that he has not taken any active part in the execution of Ext.A1. 6. It is brought out from the evidence of PW1 that Badiadka Sub Registrar office as well as office of PW3, the scribe is 25 km. away from the house of PW1 where the deceased appellant was AS 518/1994 6 residing, after she was taken from the house of respondents and that too after the death of Monappa. It is clear from the evidence that without the help of some other person could not have gone to Badiadka either to give instructions to prepare the Will or to execute and register the Will. Though PW1 expressed ignorance, it is clear that he is the man behind the execution of Ext.A1. That is clear from the fact that a notice demanding partition was sent on 9/8/1990 and when respondents resisted the claim setting up Ext.B1 Will, Ext.A1 Will was got executed in his favour and thereafter the suit was got instituted. From the evidence finding of the learned Sub Judge that petitioner, the propounder of the Will did not establish that Ext.A1 Will was executed by deceased appellant out of her free Will and volition and she was in a sound disposing state of mind at the time of execution of the Will is perfectly correct. If that be so, on the strength of Ext.A1 Will, petitioner is not entitled to get himself impleaded as additional appellant as he is neither the legal representative nor legal heir. Applications filed by the petitioner to get himself impleaded after condoning the delay AS 518/1994 7 and setting aside abatement are dismissed. As the appellant died on 18/1/2001 and no legal heir or representative appeared to prosecute the appeal, the appeal is dismissed as abated. M.SASIDHARAN NAMBIAR, JUDGE. uj.