IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN WEDNESDAY, THE 11TH FEBRUARY 2009 / 22ND MAGHA 1930 RSA.No. 343 of 2008 --------------------------------- AS.217/2004 of D.C. & SESSIONS COURT, KOZHIKODE OS.126/2001 of ADDL.M.C., KOZHIKODE-II .................... APPELLANTS/APPELLANTS/DEFENDANTS 1 & 4: 1. VASU, AGED 70 YEARS, S/O.AYYAPPAN, RESIDING IN VELIPRAM AMSOM AND DESOM, KOZHIKODE TALUK. 2. RAJAN, AGED 60 YEARS, S/O.AYYAPPAN, RESIDING IN VELIPRAM AMSOM AND DESOM, KOZHIKODE TALUK. BY ADV. SRI.AVM.SALAHUDIN RESPONDENTS/PLAINTIFFS & DEFENDANTS 2, 3 & 5-18: 1. SARADHA, AGED 66 YEARS, D/O.AYYAPPAN, MANNOOR AMSOM AND DESOM, KOZHIKODE TALUK. 2. PUSHPA, AGED 63 YEARS, D/O.AYYAPPAN, NALLALAM AMSOM AND DESOM, KOZHIKODE TALUK. 3. THANKAM, AGED 62 YEARS, D/O.AYYAPPAN, RESIDING IN VELIPRAM AMSOM AND DESOM, KOZHIKODE TALUK. 4. PREMA, AGED 58 YEARS, D/O.AYYAPPAN, RESIDING IN VELIPRAM AMSOM AND DESOM, KOZHIKODE TALUK. 5. HYMA, AGED 46 YEARS, D/O.AYYAPPAN, RESIDING IN VELIPRAM AMSOM AND DESOM, KOZHIKODE TALUK. 6. REMA, AGED 52 YEARS, D/O.AYYAPPAN, RESIDING IN VELIPRAM AMSOM AND DESOM, KOZHIKODE TALUK. 7. SUDHA, AGED 54 YEARS, PANNIYANKARA AMSOM AND DESOM, KOZHIKODE TALUK. 8. DINESAN, AGED 52 YEARS, NALLALAM AMSOM AND DESOM, KOZHIKODE TALUK. 9. BALAGOPALAN, AGED 50 YEARS, NALLALAM AMSOM AND DESOM, KOZHIKODE TALUK. 10. LATHIKA, AGED 48 YEARS, PANNIYANKARA AMSOM AND DESOM, KOZHIKODE TALUK. 11. BEENA, AGED 46 YEARS, NALLALAM AMSOM AND DESOM, KOZHIKODE TALUK. 12. SUDHEER, AGED 44 YEARS, NALLALAM AMSOM AND DESOM, KOZHIKODE TALUK. 13. SHEELA, AGED 46 YEARS, NALLALAM AMSOM AND DESOM, KOZHIKODE TALUK. 14. BABU, AGED 41 YEARS, VELIPRAM AMSOM AND DESOM, KOZHIKODE TALUK. 15. ANIL, AGED 38 YEARS, VELIPRAM AMSOM AND DESOM, KOZHIKODE TALUK. 16. RANI, AGED 40 YEARS, VELIPRAM AMSOM AND DESOM, KOZHIKODE TALUK. THIS REGULAR SECOND APPEALHAVING COME UP FOR ADMISSION ON 12/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. -------------------------- R.S.A.No.343 of 2008 -------------------------- JUDGMENT This Regular Second Appeal has been filed by defendants 1 and 4 in O.S.No.126/01 on the file of the Munsiff's Court, Kozhikode. The suit was one for partition. Plaintiff is the sister of defendants 1 to 7 and they are children of Kunchirutha. She had two other children also by name Kalyani and Chandran. They predeceased Kunchirutha. Defendants 8 to 14 are the legal representatives of deceased Kalyani and defendants 15 to 18 are the legal representatives of deceased Chandran. 2. It is the admitted case that plaint B schedule property belonged to Kunchirutha, she having acquired the same as early as in 1934. It is also common case that in 1976 she obtained purchase certificate in relation to the said property and thereafter, she had constructed houses RSA 343/08 2 and shop rooms therein. It is also not in dispute that Kunchirutha had executed a will in 1987 bequeathing her properties in favour of her children as also to the children of her predeceased son Chandran, but, later, in 1992 she cancelled the said will and that she died on 16.8.1998. 3. According to the first respondent/plaintiff, Kunchirutha died intestate and herself and defendants are co-owners in relation to plaint B schedule property, but that defendants 1 and 4 continued in possession of plaint B schedule property after the demise of Kunchirutha denying due share of income derived from the property to the plaintiff and other defendants. Plaintiff also alleged that attempts were made by defendants 1 and 4 to alienate the property and commit waste therein and that she is, therefore, not interested in continuing in common ownership of the property and that on 7.2.2000 she sent a lawyer notice to defendants 1 and 4 demanding partition, as requests RSA 343/08 3 made by her for partition were not conceded to by defendants 1 and 4. It is also alleged that defendants 1 and 4 issued a reply thereto setting up frivolous contention that a will was executed by Kunchirutha on 10.10.1995 bequeathing the properties in their favour. According to the plaintiff, Kunchirutha was not in sound disposing state of mind owing to illness for four years immediately preceding her death; that during that time, she had lost consciousness as well; that she was unable to manage her affairs without the help of others; that there is no possibility of Kunchirutha executing a will in 1995 and that she was aged 85 then and was having equal affection to all her children. If at all any document is brought into existence, as contended by defendants 1 and 4, that is brought into existence fraudulently and is void and the plaintiff is entitled to 1/10 share in plaint B schedule property. According to her, defendants 1 to 7 are also entitled to 1/10 share RSA 343/08 4 each and defendants 8 to 14 together are entitled to 1/10 share and defendants 15 to 18 are jointly entitled to 1/10 share as legal representatives respectively of predeceased daughter Kalyani and predeceased son Chandran. On the above allegations, first respondent/plaintiff prayed for partition of plaint B schedule property and separate allotment of 1/10 share to her with mesne profits and cost of the suit. 4. Defendants 1 and 4 resisted the suit by filing a joint written statement contending that the plaintiff and other defendants have no partible right over the scheduled property, which is attempted to be claimed by inheritance; that Kunchirutha had bequeathed plaint B schedule property in their favour under the will executed on 10.10.1995 and that she was capable of looking after her affairs and had testamentary capacity at the time of execution of the will. They contended that the parties are followers of Customary RSA 343/08 5 Makkathayam Law akin to Hindu Mitakshara Law under which there was always a preference for the sons over the daughters given away in marriage in the matter of ownership of property. The main house in plaint B schedule property was practically rebuilt by the first defendant with his own funds and the fourth defendant had made additions to the house allotted to him under the will. The shop rooms were put up by defendants 1 to 4. Even during the life time of deceased mother Kunchirutha, defendants 1 and 4 were dealing with the shop rooms as their own. It was, therefore, only in the fitness of things that Kunchirutha bequeathed the shcduled property to defendants 1 and 4, who are her surviving two sons in preference to the daughters, who were given away in marriage. Plaint B schedule property is worth Rupees Ten lakhs. If the property is properly valued, issuing a commission, the court will not have pecuniary jurisdiction to try the suit. RSA 343/08 6 5. Defendants 2, 3, 5, 7 and 9 to 14 filed a joint written statement supporting the case of the plaintiff. They prayed for partition of plaint B schedule property by metes and bounds and for separate allotment of their shares and paid the requisite court fee also for the same. 6. On the above pleadings, the trial court raised necessary issues for trial. When the suit was posted for trial in the list, defendants 1 and 4 produced the disputed will with a petition to receive the same and that was received by the trial court. Thereupon, with leave of court plaintiff filed a rejoinder challenging the genuineness of the will. She also contended that the will does not bear the signature or thumb impression of late Kunchirutha. Other defendants also, who had originally filed written statement, have filed additional written statement asserting their contentions already advanced and the defendants, other than defendants 1 and 4, raised further RSA 343/08 7 contentions, which are identical to the contentions raised by the plaintiff assailing the will. On the basis thereof, additional issues were also framed by the court below. 7. The contention of defendants 1 and 4, being one claiming absolute right over the scheduled property on the basis of the disputed will after admitting the title of the common ancestor, they were asked to give evidence by the trial court. Accordingly, DW1, who was one of the atttestors to the will, was examined to prove the will dated 10.10.1995 and the will was marked as Exhibit B1. A prior will executed by Kunchirutha on 23.11.2002 was also marked as Exhibit B2. No other evidence was adduced on the side of defendants 1 and 4 and they also did not enter the witness box. No evidence at all was let in by defendants 2, 3, 5, 7 and 9 to 14. Plaintiff tendered evidence as PW1 and got marked Exhibit A1 on her side. Exhibit B2 was also being got marked through her. RSA 343/08 8 8. The trial court considered the rival contentions of the parties and came to the conclusion that the will has been brought into existence under suspicious circumstances and therefore, as defendants 1 and 4, who were propounders of the will were not able to dislodge the suspicious circumstances surrounding execution of the will, the will cannot be accepted as genuine and one executed by the testator with full testamentary power. Consequently, a preliminary decree was passed for partition as claimed allowing separate allotment of 1/10 share to the plaintiff and separate allotment of 1/10 share each to defendants 2, 3, 5, 7 and 1/10 share each jointly to defendants 8 to 14 and defendants 15 to 18 leaving the question of share of profits to be decided in the final decree proceedings and directing that cost of the suit shall come out of the estate. RSA 343/08 9 9. The judgment was assailed by defendants 1 and 4 filing A.S.No.217/04 before the District Court, Kozhikode and vide judgment dated 13.9.2007 the District Judge dismissed the appeal confirming the preliminary decree passed by the trial court. It is assailing the concurrent preliminary decree so passed, allowing partition of plaint B schedule property by metes and bounds and allocation of eligible shares to the sharers concerned, as stated above, that this Regular Second Appeal has been filed by defendants 1 and 4. 10. It is vehemently contended before me by Sri.A.V.M.Salahudeen, learned counsel for the appellant, that the finding of the courts below that Exhibit B1 will cannot be accepted as genuine deserves to be reversed, as DW1, the attestor to the will, has duly proved execution of the will. He further argued that it is in view of the investments made by defendants 1 and 4 for construction and improvements of the building and RSA 343/08 10 shop rooms therein that the mother has given the property exclusively to them, especially when all the daughters were given away in marriage, giving them sufficient cash and ornaments as per the custom of the community and that therefore, the courts below were not justified in not accepting Exhibit B1 will as genuine. 11. It is true that execution of Exhibit B1 will is proved by examination of DW1. The courts below have found against the genuineness of the will by reason of existence of suspicious circumstances surrounding execution of Exhibit B1 will as testator was aged 85 as on the date of execution of the will and there was no convincing evidence regarding her power of testamentary disposition and despite the contention assailing the genuineness of the will pointing out the suspicious circumstances neither the first defendant nor the fourth defendant has cared to enter the witness box to offer themselves for RSA 343/08 11 cross-examination. The result is that the suspicious circumstances, discussed by the courts below, could not be explained away in any manner whatsoever. It was under that circumstance that both the courts below found that Exhibit B1 will brought into existence under suspicious circumstances is not genuine and valid in law. 12. It is contended by counsel for the appellants that as per Exhibit B2 will, there was only one building in existence at the time of execution of the will in 1992 and even as per the averments in the plaint, now, two buildings and shop rooms are in existence; that those were constructed by the appellants/defendants 1 and 4 and that at least for the purpose of establishing special rights over those buildings, the case be remanded back to the trial court enabling the appellants to adduce further evidence. It is seen that special rights had been claimed even in the written statement and additional issues 8 to 10 RSA 343/08 12 relate to the special rights claimed and those were answered against the appellants, as they had not adduced any evidence to substantiate the special rights so claimed by them. It is a case where the appellants/defendants 1 and 4 have not cared to enter the witness box and to tender evidence to substantiate their claim for special rights. They are not entitled to have a remand of the case on that score. There is no merit in the case so as to enable this Court to interfere with the concurrent findings of the courts below. There is no question of law and much less any substantial question of law that arises for consideration by this Court in this Regular Second Appeal. In the result, I dismiss this Regular Second Appeal. 11th February, 2009 (K.P.Balachandran, Judge) tkv