IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 18TH DECEMBER 2008 / 27TH AGRAHAYANA 1930 MFA.No. 644 of 2003(F) ---------------------- OS.2/2002 of ADDL.DISTRICT COURT, ALAPPUZHA. APPELLANT(S): DEFENDANTS 5 TO 9 1. SHAJI, AGED 38 YEARS, S/O. CLECTUS THOTTUNKAL; HOUSE, CHERTHALA, ALAPPUZHA DISTRICT 2. VINOD, AGED 36 YEARS, OF DO.DO. 3. JOHN BRITTO CALLED PREM KUMAR, AGED 35 YEARS, DO.DO. 4. SENKUMAR, AGED 28 YEARS, DO.DO. 5. LATHA MOL, AGED 26 YEARS, D/O. CLEETUS, DO.DO. BY ADV. SRI.B.RAJEEV KOYICKAL RESPONDENT(S): PLAINTIFFS 1 AND 2 AND DEFENDANTS 1 TO 3 1. DOMINIC S/O. ISAC, AGED 28 YEARS, THOTTUMKAL, THUMPOLI, ALAPPUZHA. 2. JOSEPH S/O. ISSAC, AGED 24 YEARS, DO.DO. 3. ISSAC S/O.DOMINIC, AGED 70 YEARS, THOTTUMKAL, THUMPOLI, ALAPPUZHA 4. THRESIAMMA NICHOLAS, AGED 57 YEARS, KARUMANCHERRY, OADATHIL GATE VELI, FORT COCHIN 5. REETHAMMA JOSEPH, AGED 65 YEARS, THAIPARAMBILHOUSE, PALLIPORT P.O., MUNAMBAM, ERNAKULAM DISTRICT. (THE NAME OF THE 3RD RESPONDENT IS STRUCK OFF FROM THE PARTY ARRAY AND THE ADDRESS OF THE 5TH RESPONDENT IS CORRECTED AS PER ORDER DATED 10.3.2005 UB I.A. NO.723 OF 2005.) ADV. SRI.J.OM PRAKASH FOR R1 & 2 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 4.12.2008, THE COURT ON 18.12.2008 DELIVERED THE FOLLOWING: C.N. RAMACHANDRAN NAIR & HARUN-UL-RASHID, JJ. --------------------------------------------------------- M.F.A. NO. 644 OF 2003 --------------------------------------------------------- Dated this the 18th day of December, 2008 JUDGMENT Harun-Ul-Rashid, J. Defendants 5 to 9 in O.S. No.2 of 2002 on the file of the Additional District Court, Alappuzha are the appellants. The plaintiffs in the suit are respondents 1 and 2 in this appeal. The plaintiffs filed O.P.(Probate) No.30 of 1999 under Section 276 of the Indian Succession Act, 1925 for grant of probate of the Will dated 3.2.1995. The said Original Petition was refiled as O.S. No.2 of 2002. The court below decreed the suit declaring that Ext.A3 document is the last Will and testament of deceased Thankmma Bernad and that the plaintiffs are entitled to grant of probate. The said judgment and decree is under challenge in this appeal. 2. The plaintiffs are the legatees under Ext.A3 Will dated 3.2.1995. The contesting defendants disputed the genuineness of the Will. They denied the execution of the Will by late Thankamma Bernad and contended that late Thankamma Bernad was not capable of understanding the contents of the Will and, therefore Ext.A3 is not a free Will. The husband of late Thankamma Bernad predeceased her. Plaintiffs 1 and 2 are the children of the first defendant who is one of the brothers of late M.F.A. NO.644/2003 2 Thankamma Bernad. Defendants 2 and 3 are the two sisters of the deceased and defendants 5 to 9 are the legal representatives of the 4th defendant who died pending the suit. 3. Learned counsel appearing for the appellants contended that Ext.A3 Will is a fabricated one and it was executed by impersonation. He pointed out circumstances which according to him clearly shows that deceased Thankamma Bernad was not in need of executing such a Will in favour of the sons of one of the two brothers by excluding the defendants by giving them some nominal gifts as per the Will. It is also contended by the learned counsel that the signature of the deceased in Ext.A3 Will and the signature in the application form submitted by her to the Indian Post and Telegraph Department totally differs. He also cited the decision of the Supreme Court in Kalyan Singh v. Chhoti reported in (1990) 1 S.C.C. 266 and of this Court in Chithalan v. C. Ammu Amma and Others reported in 1968 K.L.J. 123. We have no difference of opinion about the proposition of law laid down by the Supreme Court and this Court in the above judgments. But, in the nature of the facts proved in this case, we are of the view that the principles laid down in those decisions are not to be applied to non-suit the plaintiffs. 4. Late Thankamma Bernad died issueless on 19.12.1997. She was a graduate and was serving in the Military. The date of death of late M.F.A. NO.644/2003 3 Thankamma Bernad is not disputed. Before the trial court one of the attestors to the Will was examined as PW.2. The court below examined the veracity of the statement of PW.2 and held that his statement can be acted upon. The court below also examined the contention regarding fabrication and impersonation at the instance of the first defendant and rightly concluded that Ext.A3 is not a forged and fabricated document brought into existence by impersonation. The court below also concluded that late Thankamma Bernad went to the Sub Registrar's Office and executed Ext.A3 Will in the presence of PW.2. The court below compared the signature of late Thankamma Bernad found in Ext.A2 with that of the signature in Ext.A3 and found that there is no dissimilarity between the two signatures. 5. The next contention raised by the learned counsel for the appellants is that late Thankamma Bernad was not capable of understanding things and, therefore, Ext.A3 Will is not a free Will. In this connection, the oral evidence of PWs.1 and 2 are very material. PWs.1 and 2 had stated that the deceased was not suffering from ailment at the time of execution of Ext.A3 Will. The deceased, a graduate, was a retired Nurse attached to Military service. DW.1 also admitted that the deceased was not suffering from any kind of serious disease affecting her mental capability at any time before her death. According to DW.1, the deceased M.F.A. NO.644/2003 4 was admitted in the hospital on 28.9.1997 as she was suffering from fever. The court below, therefore, safely concluded that the contention of the defendants that Thankamma Bernad was not having sound disposing mind and that she was not capable of understanding things at the time of execution of Ext.A3 is nothing but a false story. The evidence of PW.1 shows that the deceased was residing with the second plaintiff and was being looked after by him. It has also come out in evidence that the second plaintiff was brought up and educated by late Thankamma Bernad. The circumstances taken as a whole would reveal that the first defendant and the plaintiffs were attending to the deceased and looking after her. In the circumstances, we have no hesitation in holding that Ext.A3 Will was executed by late Thankamma Bernad fully knowing its contents and that it is a free Will. We find no grounds successfully urged to take a different view in this matter. The appeal fails and it is accordingly dismissed. There will be no order as to costs. (C.N. RAMACHANDRAN NAIR) JUDGE (HARUN-UL-RASHID) JUDGE sp/ M.F.A. NO.644/2003 5 C.N. RAMACHANDRAN NAIR & HAURN-UL-RASHID, JJ. M.F.A. NO. 644/2003 JUDGMENT 18th December, 2008 M.F.A. NO.644/2003 6