IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 25TH FEBRUARY 2010 / 6TH PHALGUNA 1931 WP(C).No. 3497 of 2008(N) ------------------------- AGAINST THE ORDER IN IA.582/2007 IN IA.1067/2001 IN OS.106/1991 of MUNI-MAGI.COURT,PERINTHALMANNA .................... PETITIONER(S): --------------- 1. PREMA KUMARI, AGED 46 YEARS, D/O. LATE T.RAMAN, THAZHATHETHIL HOUSE, PERINTHALMANNA TALUK, PUZHAKKATTIRI AMSOM, KOTTUVAL DESOM, PUZHAKKATTIRI P.O., ANGADIPURAM (VIA), MALAPPURAM DISTRICT. 2. VASUDEVAN, AGED 37 YEARS, S/O. LATE T.RAMAN, THAZHATHETHIL HOUSE, PERINTHALMANNA TALUK, PUZHAKKATTIRI AMSOM, KOTTUVAL DESOM, PUZHAKKATTIRI P.O., ANGADIPURAM (VIA), MALAPPURAM DISTRICT. 3. CHANDRA, AGED 34 YEARS, D/O. LATE T.RAMAN, THAZHATHETHIL HOUSE, PERINTHALMANNA TALUK, PUZHAKKATTIRI AMSOM, KOTTUVAL DESOM, PUZHAKKATTIRI P.O., ANGADIPURAM (VIA), MALAPPURAM DISTRICT. BY ADV. SRI.G.HARIHARAN RESPONDENT(S): --------------- 1. PRABHA @ PRABHAKARAN, S/O. LATE T.RAMAN, AGED 54 YEARS, THAZHATHETHIL HOUSE, PERINTHALMANNA TALUK, PUZHAKKATTIRI AMSOM, KOTTUVAL DESOM, PUZHAKKATTIRI P.O., ANGADIPURAM (VIA), MALAPPURAM DISTRICT. 2. NARAYANAN, S/O. LATE T.RAMAN, AGED 40 YEARS, THAZHATHETHIL HOUSE, PERINTHALMANNA TALUK, PUZHAKKATTIRI AMSOM, KOTTUVAL DESOM, PUZHAKKATTIRI P.O., ANGADIPURAM (VIA), MALAPPURAM DISTRICT. WPC.3497/08 3. INDIRA, D/O. LATE T.RAMAN, AGED 31 YRS, THAZHATHETHIL HOUSE, PERINTHALMANNA TALUK, PUZHAKKATTIRI AMSOM, KOTTUVAL DESOM, PUZHAKKATTIRI P.O., ANGADIPURAM (VIA), MALAPPURAM DISTRICT. 4. C.RAVEENDRAN, ADVOCATE (COMMISSIONER), PATTAMBI ROAD, PERINTHALMANNA P.O., MALAPPURAM DISTRICT. ADV. SRI.KISHORE B. FOR R4 SRI.M.P.ASHOK KUMAR FOR R1 & 2 SRI.T.K.SANKARAN FOR R1 & 2 SRI.ASWIN GOPAKUMAR FOR R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC.3497/08 APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE WILL DATED 05.02.2005 IN FAVOUR OF THE PETITIONER AND RESPONDENT NO.3 EXT.P2: COPY OF I.A.NO.582/2007 IN I.A.NO.1067/2001 IN O.S.NO.106/91 ON THE FILES OF MUNSIFF'S COURT, PERINTHALMANNA. EXTP3: COPY OF THE COUNTER AFFIDAVIT IN I.A.NO.582/2007 IN I.A.NO.1067/2001 IN O.S.NO.106/91 DATED 30.10.2007 FILED BY THE RESPONDENT NO.2 EXT.P4: COPY OF THE ORDER IN I.A.NO.582/2007 IN I.A.NO.1067/2001 IN O.S.NO.106/1991 DATED 24.11.2007 PASSED BY THE MUNSIFF MAGISTRATE COURT, PERINTHALMANNA. /TRUE COPY/ P.A. TO JUDGE S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.3497 OF 2008 () ----------------------------------- Dated this the 25th day of February, 2010 J U D G M E N T The writ petition is filed seeking mainly the following reliefs: i. to allow this writ petition. ii. to set aside the order dated 24.11.2007 passed by the Munsiff Magistrate Court, Perinthalmanna I.A.No.582/2007 in I.A.No.106/1991. iii. to direct the Munsiff Magistrate Court, Perinthalmanna to proceed further in the final decree application viz. I.A.No.1067/2001 treating Ext.P1 Will (produced and marked as Ext.A1 in the final decree proceedings) as a valid Will. 2. Petitioners are some of the plaintiffs in O.S.No.106 of 1991 on the file of the Munsiff Court, Perinthalmanna. The above suit was one for partition and a preliminary decree had WPC.3497/08 2 also been passed. In the preliminary decree, division was directed to be made of the property to 1540 equal shares, and towards the share of the plaintiffs thavazhi 330 shares were determined for separate possession by passing a final decree. During the pendency of the final decree proceedings, the 1st plaintiff, namely, Lakshmi, the mother of the other plaintiffs and respondents 14, 15 and 20 had passed away. The remaining plaintiffs and the above said respondents were recorded as the legal heirs in the proceedings. The plaintiffs moved an application (Ext.P2) producing a will purported to have been executed by Lakshmi bequeathing her properties wholly in their favour and excluding respondents 14, 15 and 20. They sought for allotting the share due to the Lakshmi also in their favour accepting that will. That application was objected to by respondents 14 and 15, who are respondents 1 and 2 herein, contending that the will is fabricated and not genuine. The learned Munsiff conducted an enquiry on Ext.P2 application, in which, PWs.1 to 3 were examined and Exts.A1 to A9 were exhibited on the side of the plaintiffs and DWs.1 to 3 and Exts.B1 and B2 were marked on the side of the WPC.3497/08 3 contesting respondents. The hospital record relating to the treatment of Lakshmi was also produced and exhibited as Ext.X1. After considering the materials produced and hearing the counsel on both sides, Ext.P2 application was dismissed by the learned Munsiff vide Ext.P4 order holding that Ext.A1 is not a genuine document and the petitioners/plaintiffs have not removed the suspicious circumstances affecting the genuineness and validity of that document. Ext.P4 order is challenged in the writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 3. I heard the counsel on both sides. Before going in to the merit of Ext.P4 order, it is to be noticed that on the death of one of the parties during the pendency of the final decree proceedings, it is open to the court to vary the rights adjudged in the preliminary decree, but to do so, a modified preliminary decree by way of a separate petition is required. Before passing of a final decree, if circumstances demand, a supplementary preliminary decree varying the allotment made WPC.3497/08 4 in the previous preliminary decree can be passed. What is seen in the present case is that without moving an application for passing of a supplemental preliminary decree on the death of one of the plaintiffs, who had been allotted a share in the preliminary decree, the remaining plaintiffs sought for order from the court in the final decree proceedings to allot the share of the deceased also in their favour. That claim was based on a will purported to have been executed by the deceased 1st plaintiff, Lakshmi. After perusing Ext.P4 order passed by the court below negativing the application filed by the additional plaintiffs in the suit, I find the non-presentation of a proper application for passing of a supplementary preliminary decree to canvass a case need not be given much significance. Ext.P4 order would indicate that the materials tendered before the court were not sufficient to conclude that the will produced was executed by the deceased 1st plaintiff Lakshmi on her own free will. Ext.A1 was the will, which was an unregistered one, allegedly executed by the above said Lakshmi in the office of a Notary public. It is not disputed that Laksmi used to subscribe her signature and that is evidenced WPC.3497/08 5 by the plaint in the case as well. However, in the will produced, her thumb impression alone was there but not her signature. She was hospitalised before the creation of the will was another circumstance highlighted in the case to impeach its validity. PWs.2 and 3 who were produced and examined in the case to prove that they attested the will were found to be not trustworthy and the evidence of PW1, the notary was also found by the court to be unworthy of any acceptance. The learned Munsiff has given cogent and convincing reasons as to why their evidence was found to be not acceptable. In short, the learned Munsiff has come to the conclusion that the suspicious circumstances surrounding Ext.A1 will have not been removed by the propounders, the plaintiffs who set up their claim on the basis of that will. Onus to prove the genuineness of the will is on the propounder and it has to be done leading cogent and convincing evidence. After going through Ext.P4 order, I find no judicial impropriety in the conclusions formed by the learned Munsiff that the genuineness of Ext.A1 will despite challenge has not been established. That being so, no interference with Ext.P4 order WPC.3497/08 6 is called for invoking the writ jurisdiction of this Court. Writ petition is accordingly dismissed. S.S.SATHEESACHANDRAN JUDGE prp