IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN WEDNESDAY, THE 5TH AUGUST 2009 / 14TH SRAVANA 1931 AS.No. 161 of 2000(C) ------------------------------- OS.317/1993 of SUB COURT,NEYYATTINKARA .................... APPELLANT(S): PLAINTIFF ------------------------ 1. K.SASEENDRAN, S/O. LATE KRISHNAN, ENITHOTTATHU VEEDU, PIRAYINMOODU, KADAVATTARAM, NEYYATTINKARA TALUK. 2. B.INDIRADEVI, D/O. LATE BHARGAVI, ATHIRA, ANUPAMA NAGAR, PONGUMMOODU, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM. BY ADVS. MR.G.UNNIKRISHNAN MR.P.V.RAMESH SHANKAR MR.R.D.SHENOY, SENIOR ADVOCATE MR.S.VINOD BHAT RESPONDENT(S): DEFENDANTS ------------------------- 1. B.AMBIKA, D/O. LATE BHARGAVI, ENITHOTTATHU VEEDU, PIRAYINMOODU, KADAVATTARAM, NEYYATTINKARA TALUK. 2. B.SAKUNTHALADEVI, D/O. LATE BHARGAVI, PRAKASH, THOZHUKKAL P.O., NEYYATTINKARA . 3. B.SNATHAKUMARI, D/O. LATE BHARGAVI, PUTHUVEEDU, NEAR KATTUMUDIPPURAM, MANGALATHUKONAM, KATTACHALKUZHI P.O. AS.161/2000 4. K.SURENDRAN, S/O. KRISHNAN, KARINADA VEEDU, KARINADA, NEYYATTINKARA TALUK. 5. K.BHUVANENDRAN, S/O. LATE KRISHNAN, ENITHOTTATHU VEEDU, KADAVATTARAM, NEYYATTINKARA P.O. 6. B.SULOCHANADEVI, D/O. LATE BHARGAVI, KARINADA, VLANGAMURI, NEYYATTINKARA TALUK. 7. B.REMANI, D/O. LATE BHARGAVI, KARINADA VEEDU, KARINADA, NEYYATTINKARA TALUK. 8. B.VASANTHAKUMARI, D/O. LATE BHARGAVI, VADALLEVILA VEEDU, NEAR MUDIPPURA, ARYANADU P.O., ARYANADU. ADDL. RESPONDENTS 9 & 10 IMPLEADED. 9. PADMAKSHY PRASANNA KUMAR, PUTTATHAMATHU, PALAKKATHU VEEDU, NOCHIYOOR DESOM, CHENAKAL P.O., NEYYATTINKARA- 695 132. 10. GIRISH, S/O. GOVINDAN NAIR, KEEZHUKOLLA DESOM, CHENKAL VILLAGE, NEYYATTINKARA TALUK. ADDL. RESPONDENTS 9 & 10 ARE IMPLEADED IN THE APPEAL VIDE ORDER DTD. 12.8.03 ON CMP. 5005/02. R1 TO R3 BY ADVS. MR .D.KISHORE R4 TO R8 BY MR.S.SREEKUMAR R9 & R10 BY MR.R.T.PRADEEP, MR.V.VIJULAL, MR .T.A.PRASANTH. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 22/06/2009, THE COURT ON 05/08/2009 DELIVERED THE FOLLOWING: tss A.K.BASHEER & P.S.GOPINATHAN, JJ. == = = = = = = = = = = = = = = = = = AS.No.161 of 2000. = = = == = = = = = = = = = = = = = = Dated this the 5th day of August, 2009. J U D G M EN T Gopinathan J. The appellants are the plaintiffs in OS.No.317/1993 on the file of the Subordinate Judge's Court, Neyyattinkara. The suit was originally instituted for a decree of partition with ancillary reliefs. The relevant averments in the plaint are that the plaintiffs and defendants are the ten children of Kesavan Krishnan and Bhargavy. A son and a daughter are the plaintiffs. Defendants 4 and 5 are the other sons. Other defendants are the other daughters. Kesavan Krishnan died on 1.3.1993. Bhargavy died on 18.3.1968. Plaint A schedule properties were belonging to Kesavan Krishnan and plaint B schedule property belonged to Bhargavy. Their being ten sharers, the plaintiffs claimed 2/10 share out of the plaint schedule properties. After the death of Kesavan Krishnan the 4th defendant represented that their late father had executed a will on 28.5.1990. According to the appellants, from 1986 onwards Kesavan Krishnan was AS.No.161 of 2000. -: 2 :- suffering from Senile Dimentia and was not keeping good mental health and had been undergoing treatment either as inpatient or as out patient in various hospitals and was being treated by various doctors including doctors from Mental Health Centre, Thiruvananthapuram. His mental functions were defective and was having severe memory failure and was suffering from emotional disturbances. He used to have sudden out burst of emotion and that during the said period he was not in a position to take care of himself or his surroundings and was not caring his physical needs and his memory function was declining and that during the period of ailment he was looked after by the 4th defendant, who was controlling all the activities and that during the period, misusing the circumstances, with the active support of defendants 5 and 6, a will was created on 28.5.1990. Plaint B schedule property, which belonged to the mother was also included in the will and that since the so called will was executed at a time when the testator had no disposing mind it is only to be ignored and that under the shade of the will, the 4th respondent had been attempting to cut and remove valuable trees for which he had no right. With these pleadings a decree for partition was sought. A decree for permanent prohibitory injunction restraining AS.No.161 of 2000. -: 3 :- committing waste was also sought. Later, the plaint was amended and a decree for setting aside the will after ignoring the same as ab initio void was also incorporated. 2. Defendants 1 and 2 filed a joint written statement admitting plaint allegations and seeking division of their 2/10 share in the plaint schedule property. Court fee was also paid. 3. Third defendant also in a separate written statement supported the plaintiffs. 4. Defendants 4 to 8 by a joint written statement contended that the allegation in the plaint that their father Kesavan Krishnan was suffering senile dementia is not correct and further contended that though he had some mild problems he was cured from those problems and his memory was unaffected and that his social behavior was normal and that even in 1991 he was even attending legal affairs. It is incorrect to say that the 4th respondent was managing and controlling the affairs of the father. Deceased Kesavan Krishnan was doing himself and had voluntarily and freely executed a will on 28.5.1990, which is marked as Ext.B3, with regard to his properties and that he had bequeathed properties to all his children who are parties to the AS.No.161 of 2000. -: 4 :- suit and that the appellants/plaintiffs were aware of the execution then itself and requested the testator to permit them to enjoy the properties as per will and that Kesavan Krishnan died on 1.3.1993 and that by the death, the will had come into operation. It was further contended that plaint B schedule properties were under the possession and control of Kesavan Krishnan and he had discharged liabilities outstanding on those items and had power to execute the will in respect of those properties. Alternatively it was pleaded that each of the parties to the suit had 1/11 share in plaint B schedule properties and that in the event of partition, the present possession shall not be disturbed and that the allegation that the 4th defendant had attempted to commit waste is not correct and that the suit was devoid of merits and prayed for dismissal of suit. 5. After the amendment of the plaint an additional written statement was filed stating that the prayer sought in the plaint is unsustainable. 6. After raising issues parties were sent for trial. The second plaintiff was examined as PW1. Four other persons were examined as PWs.2 to 5. Exts.A1 to A9 were marked on the side of the appellants. On AS.No.161 of 2000. -: 5 :- the side of the contesting respondents DWs.1 to 11 were examined. Exts.B1 to B33 and Exts.X1 to X5 were marked. The lower court on appraisal of the evidence arrived a finding that late Kesavan Krishnan had duly executed Ext.B3 will, copy of which is marked as Ext.A1 and is binding on A schedule properties. It is not liable to be set aside. But it was found that the will is not binding upon plaint B schedule properties and hence those properties are partible. Consequently while decreeing the suit in part, a preliminary decree for partition of plaint B schedule property was passed whereby the appellants and other defendants who had paid the court fee were found entitled to 1/10 share each with mesne profits which shall be determined during the final decree proceedings. 7. Assailing the decree and judgment declining the partition of plaint A schedule properties, this appeal was preferred. Respondents 4 to 8 filed a cross objection assailing the preliminary decree for partition in respect of the plaint B schedule properties. 8. Pending appeal, 8th respondent alienated part of the plaint A schedule properties to two strangers who were later impleaded as respondents 9 and 10 on an application filed by the 2nd appellant. AS.No.161 of 2000. -: 6 :- 9. The points for consideration are: (i) Whether Ext.B3 Will was duly executed by deceased Kesavan Krishnan? (ii) Whether Ext.B3 is binding upon plaint B schedule properties? (iii) Whether the plaint A and B schedule properties are partible? 10. In a case were the execution of a Will is in dispute, it is the burden of the propounder to establish the due execution. Here, in this case the appellants who are the plaintiffs were aware of the execution of Ext.B3 even prior to the institution of the suit and they had taken the contentions, as mentioned earlier that the testator had no disposing mind and that Ext.B3 was executed under undue influence. The appellants/plaintiffs had led the evidence regarding the mental condition of the testator. It is in that attempt and Pws.1 to 5 were examined and Exts.A1to A9 and Exts.X1 to X5 were marked. 11. Pw1 had deposed that the testator died on 1.3.1993 at the age of 74 and that he was ailing for about five years before his death and was bed ridden and that he lacked mental health and lost memory power and was not in a position to look after his own affairs and could not take a decision by AS.No.161 of 2000. -: 7 :- his own. It was further deposed that the testator had been undergoing treatment of Dr.Swarajmony at Govindan's Nursing Home and General Hospital, Thiruvananthapuram and that he had also undergoing treatment for psychiatric problems. He had also been undergoing treatment at Neyyattinkara and Cosmo Hospital and that he was ailing for 20 years due to diabetes and that the business of the testator were looked after by the 4th defendant and that the 4th defendant had been managing the affairs of the testator and that on the last day of the funeral the 4th defendant informed that the testator had executed a will and it was brought and read. It was further deposed that the testator had no will of his own to execute a will. Pw1 denied the signature contained in Ext.B3 as that of her father. According to her, the signatures in each and every page differs and that the deceased also lacked disposing mind to give instructions to prepare a will and that by the will more properties were bequeathed to defendants 4, 5 and 6 and that the appellants/plaintiffs have got only 1/100 portion of the properties and in case the testator had a disposing mind a will like Ext.B3 would not have been executed. 12. In cross-examination Pw1 had to admit that the testator had no AS.No.161 of 2000. -: 8 :- mental ailment but had only faded memory and that whenever he was well, he had been managing the affairs of his own. It was also admitted that the testator had been conducting cases on his own and that all the daughters were got married to government employees and that the document writer who prepared Ext.B3 was ordinarily engaged by the testator for about 25 years. But she did not enquire the genuineness of the execution. Though it was the specific case of Pw1 that the testator was residing with the 4th defendant, in 1990 for some time the testator was residing with Pw1. 13. Pw2, Dr.Jayakumar, was working as General Surgeon at General Hospital, Thiruvananthapuram. He had deposed that he had been a consultant Psychiatrist and had been working at Taluk Hospital, Neyyattinkara during 1988 to 1996 and that Ext.A2 is the certificate issued by him and that the testator was under his treatment and that the testator was suffering from Alzheimer's Senile Dementia and that the syndrome of the disease was impairment in memory and thinking and that once affected it slowly progresses and persons affected by the disease could not understand, think and arrive at a logical conclusion and he could not apply his free mind and reach a conclusion and that he could not exercise independent free AS.No.161 of 2000. -: 9 :- volition. Ext.A2 is dated 11.2.1998. It is certified that the testator had been referred to him and on examination the testator had been suffering Alzheimer's Senile Dementia. There is no mention in Ext.A2 as to how long or for what period the testator was under the treatment of Pw2. Though the name of the testator is mentioned as the patient, his physical and mental condition was not certified in Ext.A2. There is also no whisper in the evidence of Pw2 that the testator was lacking a disposing mind though Pw2 had deposed about the ailment of the testator and the symptom of the so called ailment. That being the evidence of Pw2, his evidence is not reliable to arrive at a conclusion regarding the mental condition of the testator as on the date of Ext.B3. 14. Pw3 is the is the manager of the Govindan's Nursing Home. In responding to a summons issued he produced the admission register which was marked as Ext.X1. Ext.X1 would show that the testator was admitted in the hospital during 1988-89. The ailment noted is mental. Ext.X2 is the case sheet. As per the case sheet, late Dr.Prabhakaran, the then Psychiatrist is the doctor who treated the testator. It was further deposed that the testator was undergoing treatment from 5.7.1989 to 16.7.1989 and that the AS.No.161 of 2000. -: 10 :- testator was subject to shock treatment. Neither in Ext.X1 nor in Ext.X2 there is any mention regarding the mental condition of the testator. 15. Pw4, Dr.P.K.Mohandas was working as Civil Surgeon at Taluk Hospital, Neyyattinkara. He had deposed that on 4.9.1990 at 10.30 am. the testator, who was then aged 70 years, was admitted in the hospital for capsular fracture and the case was referred to the Medical College Hospital and the patient was discharged on 28.11.1990 and that he was later admitted in the hospital on 8.2.1993 and expired on 1.3.1993 at 11.50 pm. and that Ext.A3 is a certificate issued by the then Superintendent of the Taluk Head Quarter's Hospital, who is familiar to him and that Ext.X3 is the case sheet maintained in the hospital. To a question put to him as to whether the patient was having any psychological problem, it was answered that he was referred to psychiatrist as he was having some psychological problem and that Dr.Jayakumar, Pw2 was the Psychiatrist and that Ext.X3 would show that the patient was undergoing treatment for dementia. Ext.A3 would show that the testator was admitted in the hospital on 4.9.1990 due to Extra capsular Fracture neck Femer (left) and he was discharged on 28.11.1990 and that he was again admitted in the hospital on 8.2.1993 due to Extra AS.No.161 of 2000. -: 11 :- capsular Fracture neck Femer (left) and that he was diabetic and was also a patient of old case of senile dementia and that he expired on 1.3.1993. Ext.X3 would show that the testator was admitted as an inpatient at Medical College Hospital on 4.2.1993. He was diabetic and was having Extra capsular Fracture neck Femer (left) due to fall and he had undergone various treatment for the fracture and diabetes. The pages in Ext.A3 are not serially numbered. However, in an inner page there is an interleniation dated 22/2 as that of Dr.Jayakumar with noting that old case of dementia case. According to the contesting defendant the husband of the 2nd defendant is employed in the office of the Director of Health Services and Ext.X3 was concocted at his instance and that was how the interleniation entries in Ext.X3 happened. However, neither the evidence of Pw4 nor Ext.X3 would show the mental condition of the testator at the time of the execution of Ext.B3. 16. Pw5, Dr.Swarajmony, had deposed that he had worked as Civil Surgeon, Psychiatry and was a Consultant Psychologist and was Secretary to Kerala State Mental Authority and that Ext.A4 is the certificate issued by him on 5.7.1990 and that Ext.A5 is yet another certificate issued by him. He had deposed that the patient therein was under his treatment for Senile AS.No.161 of 2000. -: 12 :- Dimentia Alzheimer's and that it is slow deterioration of intellectual functions. It is a slow and steady aging of brain and that it could be accelerated by infectious injuries, smoking, diabetes, high cholostrol and vitamin deficiencies and the decline will be steady, gradual and progressive and that a patient suffering from the disease would not be able to apply his free mind to understand and grasp things because it is a steady decline of intellectual functions, memory, thinking etc. and that such a patient cannot exercise his free and independent volition. Referring to Exts.X2 and X3, Pw5 had deposed that the testator had been undergoing treatment of Dr.Prabhakaran. In Ext.A4 dated 5.7.1990 it was certified that the testator was suffering from Senile Dimentia and that the testator was under the treatment of Pw5 from 18.4.1989 and was continuing as on the date of the certificate and that the patient might require long term treatment and personal attention since he was unable to do his routine activities. In Ext.A5 also it was certified by Pw5 hat the testator was under his care from 18.4.1989 to 17.8.1990 and on his evaluation the testator was suffering from Senile Dementia Alzheimer's type. However, neither the evidence of Pw5 nor in Exts.A4 and A5 there is any mention that the testator lacked a AS.No.161 of 2000. -: 13 :- disposing mind though there was mention that the testator was suffering from Senile Dimentia Alzheimer and undergoing treatment and the witness had mentioned about the general symptoms of the ailment. 17. On the other hand, fourth defendant as Dw1 would depose that though the testator had been ailing due to old age, his mental functions were normal and that he had been fully engaged in his business and other activities and that he had been conducting litigations and that after the execution of Ext.B3, it was informed to all his ten children and that neither the 4th defendant nor the contesting defendants had any way influenced the testator and that after the execution of the will, all the children were asked to take possession of the respective shares and accordingly the testator himself demarcated the boundaries and all the children were put in possession of their respective shares. The plaintiffs and defendants 1 to 3 were not satisfied with the allocation of the properties by Ext.B3. So they made a futile attempt to pursue the testator to cancel Ext.B3 and to have separate allocation of properties. But the testator was not willing. It was further deposed that Ext.B4 is a letter written by Pw1 to the 7th defendant and that Ext.B5 is a letter written by the 2nd defendant and that Ext.B6 is a AS.No.161 of 2000. -: 14 :- letter written by first defendant to the 7th defendant. Ext.B4 was shown to Pw1. She denied of sending such a letter. Neither the first defendant nor the 2nd defendant had come forward to give any denial evidence about the sending of Exts.B4 and B5. The 7th defendant had deposed that Exts.B4 to B6 are in the handwriting of Pw1, 2nd defendant and first defendant respectively and were received to her by post. In case Exts.B4 to B6 are genuine it could be concluded that the 2nd plaintiff and defendants 1 and 2 were aware of the execution of Ext.B3 during the life time of the testator and the attempt was to pursue the testator to cancel the same and for a reallocation. Whatever may be that, the previous knowledge about Ext.B3 may not be a proof of valid execution of Ext.B3 though it probabilises the case of the contesting defendants. 18. Dw1 had further deposed that it is incorrect to say that the testator had any mental ailment in 1990 and that regarding item No.23 of the plaint schedule properties there was a suit as OS.No.378/1983 before the Sub Court, Thiruvananthapuram wherein the testator was the plaintiff and that as against the decree and judgment an appeal was filed as AS.No.264/1988 and that the testator was the first respondent and that the AS.No.161 of 2000. -: 15 :- case was settled in the appeal stage and that in pursuance of the settlement two portions of the property were assigned by the testator in favour of the 5th and 3rd appellants in that case on 27.8.1991 and that Exts.B7 and B8 respectively are the copies of the assignment deeds executed by the testator and that Ext.B9 is the attested photo copy of the compromise petition and that Advocate S.Subramani was conducting the case on behalf of the testator and that Exts.B10 and B11 are the attested copies of the decree and judgment in that case. It was further deposed that in respect of the property comprised in Sy.No.33/2 the testator had mortgage right and that it was released on 5.8.1992 and that Ext.B12 is the copy of the release deed executed by the testator and that the property set apart to the share of the 2nd plaintiff as per Ext.B3 was mutated in her name and Ext.B13 is the document in proof of the mutation. The property set apart to the first plaintiff as per Ext.B3 was also mutated and Ext.B14 is the document. 19. Further, the evidence of DW1 is that the testator was conducting a textile shop at Neyyattinkara and the shop building was reconstructed in 1991-1992 and that Ext.B15 is the sanction order dated 28.9.1991 obtained from the Municipality by the testator for the AS.No.161 of 2000. -: 16 :- reconstruction of the said building and that the reconstructed shop was inaugurated in the year 1992 and Exts.B16 to B19 are the photographs of inauguration of the shop building and that Ext.B20 is the negative of the photographs. Ext.B21 series and Ext.B22 series are the building tax receipts for payment of the tax in respect of the reconstructed building. It was also deposed that the properties set apart to the share of defendants 4 to 8 were also mutated and Ext.B23 is the document regarding the mutation and that Ext.B24 series and Ext.B25 series are the tax receipts. It is the further evidence of DW1 that after the death of the testator the first plaintiff was residing in the property set apart to his share as per Ext.B3 and that Ext.B26 is the copy of the consent letter issued by the first plaintiff for drawing electrical line across the property set apart to his share and that before shifting residence to the properties set apart, he had been residing in a property set apart to the share of the fifth defendant as per Ext.B3 and that Ext.B27 is the lease deed executed by the first plaintiff in favour of the 5th defendant and that a house situated in the share of the first plaintiff as per Ext.B3 was subsequently let out by the first plaintiff to one Kumaran. 20. DW1 had further deposed that the testator was a diabetic AS.No.161 of 2000. -: 17 :- patient and had been undergoing treatment in various hospitals including Govindan's Nursing Home and under the treatment of various doctors and that the testator had sustained fracture of the femur and that Pw2 had never treated the testator and that other than the ailment in connection with old age, the testator was well and that Ext.A3 was concocted with the assistance of the husband of the 2nd plaintiff who was employed in Health Department and that the testator was very particular that his children should obey him and that after the death of the mother, the testator was looking after the affairs of all the properties including that of the mother and that the testator did not allow anybody to interfere with his decisions and he was not amenable to any sort of interference. 21. DW2 is a scribe having office near the Sub Registrar's Office, Amaravila. He had deposed that the testator was known to him for about 4 ½ decades before his death and that the testator had sustained fracture by fall and one