IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 29TH JUNE 2009 / 8TH ASHADHA 1931 RSA.No. 1143 of 2008() ---------------------- AS.90/2006 of VI ADDL.DISTRICT COURT, ERNAKULAM OS.1773/2003 of II ADDL.M.C., ERNAKULAM .................... (S): APPELLANTS/DEFENDANTS 1 AND 2 ------------------------------------------------- 1. NALINI VISWAMBARAN, D/O.K.NANU MENON AGED 53 YEARS, 52/323, NALINI NIVAS (GEETHA NIVAS) KONTHURUTHY, THEVARA. 2. VISWAMBARAN, S/O.KRISHNAN, AGED 62 YEARS 52/323, NALINI NIVAS (GEETHA NIVAS), KONTHURUTHY, THEVARA. BY ADV. SRI.K.JAJU BABU SMT.M.U.VIJAYALAKSHMI SRI.BRIJESH MOHAN SRI.T.S.SHYAM PRASANTH SMT.C.S.SHEEJA RESPONDENT(S): RESPONDENT/PLAINTIFF ----------------------------------- K.PARAMESWARA MENON, S/O.K.NANU MENON, AGED 73 YEARS, SURABHI, VYRELIL LANE, MARKET ROAD, TRIPUNITHURA, ERNAKULAM. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 29/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID, J. --------------------------------------- R.S.A.No.1143 of 2008 ---------------------------------------- Dated this the 29th day of June, 2009 JUDGMENT The Second Appeal is directed against the judgment and decree in A.S.No.90 of 2006 on the file of the District Court, Ernakulam. The appellants 1 and 2 are the defendants in O.S.No.1773 of 2003 on the file of the Munsiff's court, Ernakulam. The suit filed for recovery of possession and damages, was decreed by the trial court and confirmed in the appeal and hence this second appeal. The parties are arrayed herein as plaintiffs and defendants as in the suit. 2. The disputed property belonged to one Kumari.K.Leela. The plaintiff is the only brother of the deceased Leela. The first defendant is a sister of Leela born to his father through the second wife and the second defendant is the husband of first defendant. The deceased Leela was a teacher and remained unmarried through out her life. She retired from service in the year 1985. The disputed property is a small extent of land namely 3.385 cents with a residential building therein. Deceased Leela was residing in the property till her death. In the year 1991 deceased Leela executed a registered R.S.A.No.1143 of 2008 2 will bequeathing the disputed property in favour of his only brother who is the plaintiff in the suit. In 1996 she executed a power of attorney also in favour of a registered power of attorney in his favour empowering the plaintiff to execute any documents pertaining to Leela's property. According to the plaintiff the power of attorney was executed taking into account the liabilities and commitment taken over by the plaintiff for the deceased Leela. It is also contended by the plaintiff that she became sick in 1997 and thereafter was suffering from abnormal behaviour and loss of memory. In the circumstances she was under psychiatric treatments during the period from 1997 to 2001. It is also averred that she was completely sick and fickle minded, without memory and extreme abnormalities in her behaviour till she died on 2/10/2003. It is not disputed by the plaintiff that the defendants are residing along with deceased Leela for a considerable period of time. It is the plaintiff's case that Ext.A1 will was executed when Leela was completely normal and the same was executed out of free will. On the death of testator the plaintiff became the title holder of the property and he is the absolute owner in possession of the property. Plaint A R.S.A.No.1143 of 2008 3 schedule is the immovable property, plaint B schedule is the movables, plaint C schedule is the telephone connection and D schedule the LPG gas connection. According to the plaintiff the defendants were accommodated in the house for helping Leela in her affairs since the plaintiff was working far away in different states. It is also averred that the plaintiff came to know that now defendants are putting up a claim based on a fabricated will and he came to know about the same only from the reply notice sent to him. The suit was filed for recovery of plaint A schedule to D schedule properties on the strength of his title. 3. The defendants set up rival title and denied the title of the plaintiff. According to them the deceased Leela had executed a second will in the year 2002 bequeathing the plaint A schedule property in favour of the first defendant. On the basis of the contentions raised by the parties the court below examined in detail the evidence adduced on either side. Pws.1 to 4 were examined and Ext.A1 to A10 were marked on the side of the plaintiff. Dws.1 to 6 were examined and Exts.B1 to B18 were marked on the side of the defendants. The facts, circumstances and the family history were discussed and analysed by the trial R.S.A.No.1143 of 2008 4 court in detail. 4. Deceased Leela had executed Ext.A1 registered will bequeathing her property in favour of the plaintiff. The defendants also admitted the relationship of the parties. But according to them Leela has executed a will deed dated 15/6/2002 in favour of them and after her death they became the absolute owner of the property. Ext.A4 is a registered power of attorney executed by Leela on 31/12/1996 in favour of the plaintiff. As per Ext.A4 document K.Leela has authorised plaintiff, who is her brother, to deal with her personal matters as well as her properties. Plaintiff produced Exts.A1 to A10 in support of his claim of title. Ext.A10 is a certificate dated 8/2/2003 issued from St.John's Medical Centre issued by Dr.Cyriac Mathew certifying that approximately three years back the deceased Leela was suffering from abnormal behaviour and loss of memory. By Ext.A10 certificate Doctor referred the case to a psychiatrist for further investigation. In order to prove Ext.A1 will, the plaintiff examined PW.2 and PW3. PW4 who is the Doctor who issued Ext.A10 certificate. Ext.A10 certificate was proved through PW.4 who has treated Leela for a period of R.S.A.No.1143 of 2008 5 six years and she was his patient. The doctor testified that he treated Leela from 1997 to 2002. He also admitted that deceased Leela was brought before him three years back due to loss of memory and abnormal behaviour and he had referred her to a psychiatric expert. The doctor also testified that the deceased was suffering from mental depression during that time and her speech and behaviour were abnormal. 5. The trial court considered in detail the evidence adduced by defendants and their case regarding the validity of Ext.B2 will. Ext.B2 is a notarised copy of the will. The original will was not produced. The copy of the will was marked as Ext.B2. The trial court rightly held that the will deed shall be proved by examining one of the attesting witness as contemplated Under Sections 68 or 69 of the Indian Evidence Act. Two witnesses were examined on the side of defendants. DWs.2 and 3 deposed that they have no knowledge regarding the affirmations stated in their proof affidavit filed as chief examination. They were again re-called as per the application of the defendant and again examined. The trial court rightly held that the evidence of DWs.2 and 3 will not amount to proof of B2 R.S.A.No.1143 of 2008 6 will as per Section 68 of the Indian Evidence Act and further that the evidence of Dws.2 and 3 itself will disprove the case of genuiness of Ext.B2. The trial court examined all the oral evidence of all the witnesses examined on the side of the defendants and the documents. The trial court disbelieved the version of the witnesses. The facts, circumstances, family background and other probabilities were taken into consideration and finally the trial court concluded that the title set up by the defendant on the strength of Ext.B2 will cannot stand. Therefore the decree for recovery of possession was passed. 6. The defendants challenged the findings of the trial court. The appellate court also examined each and every questions raised by the appellants. The appellate court observed that the plaintiff is the only brother of deceased Leela who remained unmarried through out her life who a teacher by profession, that she executed Ext.A1 will bequeathing her right over the property in favour of her only brother. The appellate court also held that Leela considered the plaintiff as the only dependable relative and they had mutual love and affection. The R.S.A.No.1143 of 2008 7 question regarding the execution of Ext.A1 and B2 will are also discussed and considered by the Appellate court in detail. The appellate court has also reached the very same conclusion on facts. The Appellate court also gave credence to Ext.A4 registered power of attorney executed in the year 1996 ie., five years after she executed Ext.A1 will. The execution of Ext.A4 power of attorney, according to the Learned Judge, will also show the faith of Leela in the plaintiff and their relationship. The Appellate Court also found that there is nothing in evidence and not even a suggestion in evidence that Ext.A4 was obtained by the plaintiff due to any undue influence etc. The plaintiff is the only brother. The execution of Ext.A1 will in favour of the plaintiff cannot be considered as unnatural and cannot be viewed with suspicion without any evidence in that regard. For all these reasons appellate court also confirmed the findings of the learned Munsiff. The appellate court also considered the proof of execution and genuiness of Ext.B2 will. The appellate court after examining the oral testimonies of DW.2 held that they cannot be believed for the purpose of execution of Ext.B2 will and also considered Ext.A2 and Ext.A10 the medical certificate R.S.A.No.1143 of 2008 8 and found that the signature in Ext.B2 will has no comparison or similarity with other admitted signatures of Leela and her admitted letters and service records produced in this case. The appellate court also rightly held that the defendant failed to prove that Ext.B2 is a genuine will executed by testator, Leela. The only question which is relevant for consideration in this case is genuineness Ext.A1 and B2 will on the basis of facts, evidence and family backgrounds. Both courts rightly held that the deceased Leela executed Ext.A1 will and B2 will is not genuine will. In the circumstances the decree passed by the trial court confirmed in appeal requires no interference in the second appeal. No grounds made out by the appellants for invoking Section 100 of the C.P.C. In the result the appeal fails and accordingly dismissed. (HARUN-UL-RASHID, JUDGE) skj.