IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 24TH JUNE 2008 / 3RD ASHADHA 1930 RSA.No.130 of 2005 (F) --------------------------- AS.121/2002 of WAKF TRIBUNAL & VI ADDL.DISTRICT COURT, ERNAKULAM OS.1380/1999 of II ADDL.M.C., ERNAKULAM .................... APPELLANTS/RESPONDENTS/PLAINTIFFS 1 TO 20 ----------------------------------------------------------- * 1. MARY, W/O. LATE OUSEPH PETER, AGED 72, KALLOOR HOUSE, MALIPPURAM P.O., KARTHEDOM, KOCHI-1. [DIED] 2. K.A.ELIZABETH, W/O.LATE JOSEPH, AGED 70, THOTTAKATH HOUSE, VADUTHALA, COCHIN-23. 3. T.J.ANTONY, S/O. LATE JOSEPH, AGED 42, THOTTAKATH HOUSE, VADUTHALA, COCHIN-23. 4. T.J.AUGUSTINE JOHN, S/O. LATE JOSEPH, AGED 40, THOTTAKATH HOUSE, VADUTHALA, COCHIN -23. 5. T.J.LOURD, D/O. LATE JOSEPH, AGED 38, THOTTAKATH HOUSE, VADUTHALA, COCHIN -23. 6. T.J.MARY, D/O. LATE JOSEPH, AGED 36, THOTTAKATH HOUSE, VADUTHALA, COCHIN-23. 7. T.J.JELTHROUGHDHU, S/O. LATE JOSEPH, AGED 34, THOTTAKATH HOUSE, VADUTHALA, COCHIN-23. 8. T.J.HENTRY ROY, S/O. LATE JOSEPH, AGED 32, THOTTAKATH HOUSE, VADUTHALA, COCHIN-23. RSA.No.130 of 2005 (F) -2- 9. SELEENA VARGHESE (DIED), W/O. LATE VARGHESE, AGED 72, THOTTAKATH HOUSE, VADUTHALA, COCHIN-23. 10. T.V.ANTONY, S/O. LATE VARGHESE, AGED 40, THOTTAKATH HOUSE, VADUTHALA, COCHIN-23. 11. LILLY, W/O. LATE T.V.JOSEPH, AGED 34, THOTTAKATH HOUSE, VADUTHALA, COCHIN-23. 12. KUMARI LIPSY, (MINOR), D/O. T.V.JOSEPH, AGED 11, REPRESENTED BY HER MOTHER MRS.LILLY. 13. KUMARI PEKSY, (MINOR), D/O. T.V.JOSEPH, AGED 8, REPRESENTED BY HER MOTHER MRS.LILLY. 14. T.V.JOHN, S/O. LATE VARGHESE, AGED 36, THOTTAKATH HOUSE, VADUTHALA, COCHIN-23. 15. CHRISTHU RAJ, S/O. LATE VARGHESE, AGED 34, THOTTAKATH HOUSE, VADUTHALA, COCHIN-23. 16. T.V.VARKEY, S/O. LATE VARGHESE, AGED 32, THOTTAKATH HOUSE, VADUTHALA, COCHIN-23. 17. BILGI, D/O. LATE VARGHESE, AGED 42, THOTTAKATH HOUSE, VADUTHALA, COCHIN-23. 18. MARY, W/O. LATE FRANCIS, AGED 45, THOTTAKATH HOUSE, VADUTHALA, COCHIN -23. 19. CRAMEENA BREGITH, D/O. FRANCIS, AGED 21, THOTTAKATH HOUSE, VADUTHALA, COCHIN-23. 20. ESTHER ANSI, D/O. FRANCIS, THOTTAKATH HOUSE, VADUTHALA, COCHIN-23. BY ADV. SRI.RAJU ABRAHAM PULPARA RESPONDENTS: APPELLANTS/DEFENDANTS --------------------------------------------------- 1. SALEENA, W/O. RAPHEL (ALIAS)- PETER, AGED 72 YEARS, THOTTAKATH HOUSE, VADUTHALA, COCHIN-23. RSA.No.130 of 2005 (F) -3- 2. RAFI, S/O. RAPHEL (ALIAS) PETER, AGED 40 YEARS, THOTTAKATH HOUSE, VADUTHALA, COCHIN-23. 3. JOSE S/O. RAPHEL, AGED 36 YEARS, THOTTAKATH HOUSE, VADUTHALA, COCHIN-23. 4. MILTON S/O. RAPHEL, AGED 30 YEARS, THOTTAKATH HOUSE, VADUTHALA, COCHIN-23. 5. ANNY D/O. RAPHEL, AGED 42 YEARS, THOTTAKATH HOUSE, VADUTHALA, COCHIN-23. 6. BEENA D/O. RAPHEL, AGED 28 YEARS, THOTTAKATH HOUSE, VADUTHALA, COCHIN-23. 7. MRS.SILVESTOR SHERLY, W/O. SILVESTOR, AGED 46 YEARS, XLIII/1077, CHOOTHATH PARAMBU, RADHA OILMILS ROAD, PACHALAM, KOCHI-12. 8. MRS.MARIA LEISSE, W/O. VARGHESE, AGED 34, ERASSERY HOUSE, CHELLANAM, COCHIN-8. 9. RITA W/O. LATE ANTONY, AGED 45, THOTTAKATH HOUSE, VADUTHALA, COCHIN-23. 10. ALLEN S/O. LATE ANTONY, REPRESENTED BY HIS MOTHER, SMT.RITA, THOTTAKATH HOUSE, VADUTHALA, COCHIN-23. BY ADV. SMT.P.R.LESLIE STEPHEN SMT.LILLY LESLIE *[IT IS RECORDED THAT APPEAL STANDS ABATED AS FAR AS DECEASED FIRST APPELLANT IS CONCERNED, VIDE ORDER DT.30/05/08 IN I.A.664/08] THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 24/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ R. S. A. No.130 of 2005 ------------------------------------------------ Dated this the 24th day of June, 2008 JUDGMENT The plaintiffs in O.S.1380/99 on the file of the Munsiff's Court, Ernakulam who lost their case in the first appellate court as the first appellate court reversed the decree passed by the trial court and dismissed the suit, have preferred this R.S.A. 2. Appellants filed O.S.1380/99 aforesaid for a decree for partition and separate possession of their 4/5 share in the scheduled property alleging inter alia that the scheduled property was purchased by one Vruschy who was the mother of the first plaintiff and mother-in-law of plaintiffs 2, 9 and 18 as also the first defendant as per Ext.A1 sale deed of the year 1957; that the said property has got an extent of 11.25 cents R. S. A. No.130 of 2005 -2- comprised in Sy. No.1070/1 of Cheranallur Village; that after purchase, Vruschy constructed a building in the scheduled property which was numbered with Door No.1536/47; that after construction of the building her eldest son Raphel alias Peter who was the husband of the first defendant was permitted to reside therein with his family; that Raphel died and his wife and children are defendants 1 to 6 and they continued to reside in the said building with the permission of the plaintiffs; that deceased Vruschy had four sons and one daughter that the children of Vruschy are entitled to get equal shares over the scheduled property and they are co-owners along with the defendants and despite demand for partition, the defendants were not agreeable and they also committed waste in the property so as to defeat the interests of the R. S. A. No.130 of 2005 -3- plaintiffs and hence, plaintiffs 18 to 20 filed O.S.365/99 seeking prohibitory injunction restraining defendants 1 to 6 from committing acts of waste and alienation of the property and other reliefs; that injunction was granted in the said suit; that even after the said suit, the demand of the plaintiffs for partition of the scheduled property was not acceded to by the defendants and hence, the suit. 3. Defendants 1 to 10 filed a written statement contending that the first defendant is having exclusive ownership of the scheduled property by virtue of a will executed by Vruschy on 30/11/1969; that though Vruschy purchased the scheduled property as per Ext.A1 sale deed, the building therein was constructed utilising the funds of the first defendant; that she got the help of R. S. A. No.130 of 2005 -4- Vimalalayam, a religious and charitable institution at Ernakulam for construction of the said building; that herself and her husband and children were residing in the said building for which permission of the plaintiff was not required; that the first defendant became the absolute owner and was in possession and enjoyment of the scheduled property from the date of death of Vruschy; that plaintiffs and defendants 7 to 10 have no right to inherit the scheduled property and they are not co-owners; that they are not committing any act of waste in the property; that the plaintiffs have no cause of action and that the suit has to be dismissed. 4. On the above pleadings, the trial court raised necessary issues for trial and after trial and considering the evidence adduced at trial which consisted of oral R. S. A. No.130 of 2005 -5- evidence of PWs.1 to 3 and DWs.1 and 2 and documentary evidence of Exts.A1 to A3 and B1 decreed the suit allowing partition of the scheduled property by metes and bounds and allotment of separate possession of plaintiffs 4/5 share in the scheduled property and the building therein. The decree of the trial court was assailed in appeal by defendants 1 to 8 filing A.S.121/02 before the district court, Ernakulam and the appellate court allowed the appeal setting aside the decree and judgment passed by the trial court and dismissed the suit. Hence, this R.S.A by the aggrieved plaintiffs. 5. It is vehemently contended before me by the learned counsel for the appellants that Ext.B1 will is not genuine and is concocted and the first appellate court should not have upheld the will in which event the property R. S. A. No.130 of 2005 -6- would have been partible as has been found by the trial court and that in the circumstances, the trial court decree be restored allowing the R.S.A and that substantial questions regarding the validity of the will as formulated in the appeal memorandum do arise for consideration in this R.S.A. It is also contended that there are suspicious circumstances attending execution of the will and that the defendants not effecting mutation after 30 years will show that the will was not in existence and was being made up later so as to advance exclusive title over the scheduled property. 6. I have carefully gone through the judgments of the trial court and the first appellate court. It is not in dispute and it cannot be gainsaid either that if Ext.B1 will is found to be not genuine the scheduled R. S. A. No.130 of 2005 -7- property and the building therein becomes partible, the plaintiffs and defendants being co-owners on the death of Vruschy intestate. So the material question to be adjudged is the question as to whether Ext.B1 will is genuine or not. In this context as rightly observed by the first appellate court what is to be given utmost importance for considering the genuineness or otherwise of the will is the evidence tendered by PW3 the first plaintiff and DW2 sister Thresiamma George who was the custodian of the will. PW3 is the first plaintiff. She is the only surviving daughter of deceased Vruschy. The other children of Vruschy were males and are no more. Both PW3 and DW2 are of the same age group being aged more than 70 years at the time of tendering the evidence and they were rightly found by the first appellate court as competent R. S. A. No.130 of 2005 -8- witnesses now available to tell about past events as the other witnesses are not persons who can be said to have knowledge of matters that took place prior to 30 years namely of matters pertaining to period from 1957 onwards and during 1969 when the will was executed. 7. Ext.B1 is the copy of the will alleged to have been executed by the Vruschy on 30/11/69. First attestor of the will is Illiparambil Joseph Mani of Vaduthala and the second attestor is sister Thresiamma George of Vimalalayam. The contention of the respondents is that Ext.B1 was created on a later date by the first defendant and her children to defeat the rights of the respondents. As observed by the first appellate court, it is true that at the first blush there are suspicious circumstances surrounding the execution of the will inasmuch as testator has bequeathed the R. S. A. No.130 of 2005 -9- property in favour of first defendant the wife of her eldest son Raphel alias Peter at a time when Raphel himself was alive and further that it is seen executed in favour of first defendant to the exclusion of also three other sons of Vruschy namely Joseph, Varghese and Francis and the one and only daughter of Vruschy namely the first plaintiff. It is true that in the normal course one would not expect the testator executing such a will excluding all her children and executing will to one of the daughters-in-law only. But all the same, the first appellate court found that the reasons for executing the will exclusively to the first defendant were explained also in Ext.B1. Such recitals are to the effect that for purchase of the property covered by the will the first defendant had advanced money. Further with the help of Vimalalayam sisters R. S. A. No.130 of 2005 -10- the first defendant constructed the house in the property. The first defendant, her husband Raphel and her children were residing in the property. Of the aforesaid reasons, the defendants dispute all the statements except that the first defendant, her husband and her children were residing in the building in the scheduled property. They also point out that in the written statement of defendants 1 to 6 they have not advanced contentions supporting such recitals in Ext.B1. 8. It is worthy to note that despite the fact that Vruschy died in 1971 there was no demand for partition advanced by the plaintiffs till 1997. Even O.S.365/99 which was a suit for injunction restraining the defendants from dealing with the property was filed only in 1999 and prior thereto it does not appear that there was any dispute between R. S. A. No.130 of 2005 -11- the plaintiffs and the defendants or that the plaintiffs have advanced any demand for partition. It is submitted that the first defendant is the widow of eldest son Raphel that plaintiffs 2 to 8 are L.R.s of Joseph; that plaintiffs 9, 10 and 14 to 17 are L.Rs of Varghese and plaintiffs 18 to 20 are L.Rs of Francis who were all deceased sons of late Vruschy. The first plaintiff is the only daughter of Vruschy and she was examined as PW3. She has disputed the existence of will as according to her, Vruschy had told her that she had executed document in her favour. She admitted in cross examination that she has never taken any usufructs from the property nor has she shared any income from the scheduled property with the defendants though according to her several years back a jack fruit tree was cut and taken by her as it was R. S. A. No.130 of 2005 -12- given to her by her mother. She has however denied the signatures seen in Ext.B1 as that of her mother. All the same, in cross examination she said that the first defendant is working in Vimalalayam convent and PW3 used to go to the house of the first defendant and the building in the scheduled property was constructed by the first defendant with the help of Vimalalayam sisters. According to her, there was also a Tharavad house where her father and mother were residing and that was their Kudikidappu property. According to PW3/the first plaintiff, her mother used to sign drawing a cross and encircling it and that aspect also is corroborated by the testimony of DW2. PW3 also admitted that four cents and house was assigned to the first defendant by her mother. Consequently, PW3 limited her claim for partition over the R. S. A. No.130 of 2005 -13- balance seven cents only from out of the plaint schedule property. The admissions so made by PW3 were not attempted to be explained away or clarified in re-examination. It is seen from the judgment of the first appellate court that realising the difficulty with which the defendants were confronted in view of the above evidence, affidavits were caused to be filed by the first plaintiff and the sixth plaintiff who were examined respectively as PW3 and PW1 swearing that during evidence PW3 was in an abnormal mental condition as she was a diabetic patient and was suffering from blood pressure and she was examined as a last witness of the day and due to long waiting and strain on her mind she made contradictory statements without any foundation whatsoever and that the statements made by PW3 is erroneous and against facts. The above R. S. A. No.130 of 2005 -14- affidavits were filed with the specific view of explaining the admissions and contra- dictions brought out in evidence of PW3. As observed by the first appellate court if actually PW3 was sick and strained she could have requested for time and sought adjournment of the case for her evidence. In fact before examination of PWs.1 and 2 the witness to be examined was PW3 as she was the one who is competent to speak to the facts of the case and not PWs.1 and 2. The affidavits caused to be filed by PWs.1 and 3 explaining the mistakes in cross examination cannot be countenanced as the proper method is to clarify things in re-examination and that was not resorted to. 9. As regards the proof of will it has been stated that the first attesting witness Joseph Mani is not examined. The second R. S. A. No.130 of 2005 -15- attestor DW2 gave evidence in support of the case of the defendants. She is an aged nun and a social worker in Vimalalayam convent at Ernakulam at the relevant time. At the time of tendering evidence she was aged 70 years and was working as mother superior in Mariyalayam convent at Panangad. According to her, deceased Vruschy was working in Vimalalayam and the first defendant and 18th plaintiff were also working there. She has deposed that Ext.B1 was executed by Vruschy in 1969 and it was attested by her and further that the health and mental condition of the testator was good. It is with DW2 that Ext.B1 was entrusted for safe custody and according to DW2 it was only four years back that the document was given to the first defendant. According to DW2, all the children of Vruschy had knowledge of the existence of the will. R. S. A. No.130 of 2005 -16- The first appellate court has observed that DW2 is highly educated and is an MSW degree holder and is working as mother superior in a convent. She also knows the first plaintiff and DW2 is one who is having love and affection towards members of the family and deceased Vruschy. The plaintiffs could not attribute any malafides or ill-will in DW2 so as to tender false evidence favouring the defendants. According to DW2, Vruschy put her signature by drawing a cross and encircling it and the shape of the signature of the testator is spoken to as being in that fashion by PW3 as well. In view of the relationship DW2 maintained with Vruschy and her family members, it is quite probable that Vruschy preferred DW2 as one of the attestors. There is no merit in the contention that the first defendant was preferred by Vruschy to her own R. S. A. No.130 of 2005 -17- son Raphel who is the husband of the first defendant. When Ext.B1 will is executed in favour of the first defendant who is the wife of the eldest son of Vruschy the benefit obviously goes to her son and his children through the first defendant. As rightly observed by the first appellate court, there was no reason for the trial court having ignored the evidence of PW3 and DW2 which if properly appreciated would have enabled the court to believe their testimony and to uphold the genuineness of Ext.B1 will. PW1 as observed by the first appellate court is aged only 41 years and obviously he has no direct knowledge about anything which is relevant for adjudication of the matters in issue. Her evidence is only on hearsay and has therefore, only to be discarded except on matters within her direct knowledge when she deposed that the R. S. A. No.130 of 2005 -18- first defendant and family were residing in the building ever after its purchase and that Vruschy and her husband were residing in another building. PW2 is a Corporation Councilor. He claims that he was a mediator in the dispute between the plaintiffs and the defendants and according to him, the existence of the will was not told to him. The first appellate court has rightly discarded his testimony as he is a C.P.M activist whereas DW1 the second defendant is an office bearer of the Congress Party and obviously his evidence will be interested and prejudiced. 10. The contention advanced before me that the original of the will is not produced but only a photostat copy thereof is produced and therefore, it should not have been accepted for adjudicating the genuineness is also not of merit in the circumstances as R. S. A. No.130 of 2005 -19- observed by the first appellate court. The original will was very much available before the trial court in O.S.365/99 filed by the plaintiffs 18 to 20 and at the time of trial if at all any of the parties wanted to have it brought for consideration in O.S.1380/99 that could have been called for. The non-probating of the will set up in defence without it having been probated is also no infirmity. There is thus, no merit in this R.S.A and no question of law and much less any substantial question of law arises for consideration in this R.S.A. 11. In the result, I dismiss this R.S.A in limine refusing admission. K.P.BALACHANDRAN, JUDGE kns/-