IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 22ND JANUARY 2010 / 2ND MAGHA 1931 AS.No. 833 of 1998(C) --------------------- OS.916/1992 of III ADDL.SUB COURT, ERNAKULAM .................... APPELLANT/2ND DEFENDANT: --------------------------------- K.N.VELAYUDHAN, S/O.LATE SRI.NEELAKANDAN, KOLLAMPARAMBIL HOUSE, NADAKAVU P.O BY ADV. MR.T.I.DANIEL RESPONDENTS/PLAINTIFFS 1 & 2 AND 1ST DEFENDANT: -------------------------------------------------------------- 1. K.N.VISWANANTHAN, S/O.NEELAKANTAN, SMITHA BHAVAN, POOTHOTTA, MANAKUNNAM VILLAGE, KANAYANNUR TALUK. 2. K.N.SAHADEVAN, S/O.NEELAKANTAN, KOLLAPARAMBIL HOUSE, NADAKAVU PO., UDAYAMPERUR, MANAKKUNNAM VILLAGE, KANAYANNUR TALUK. 3. N.P.VASU, S/O.NEELAKANTAN, VADAYANEZHATHU HOUSE, S.D.P.Y. ROAD, PALLURUTHY. ADV. MR.A.BALAGOPALAN FOR R1 & R2 MR.K.C.CHARLES FOR R1 & R2 THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 22/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID, J. ----------------------------------- A.S.No.833 of 1998 - C --------------------------------- Dated this the 22nd day of January, 2010 J U D G M E N T The second defendant in O.S.No.916 of 1992 on the file of the 3rd Additional Sub Court, Ernakulam, is the appellant. Suit is for declaration that the decree passed in O.S.No.184 of 1992 is void ab-initio and not binding on the plaintiffs or their rights in the property and for a permanent prohibitory injunction restraining the defendants from taking any further steps pursuant to the decree passed in O.S.No.184 of 1992. The trial court decreed the suit granting the reliefs claimed for. Aggrieved by the decree and judgment dated 31.7.1997, the second defendant has preferred this appeal. The parties hereinafter are referred to as the plaintiff and defendant as arrayed in the suit. 2. The facts necessary for disposal of the appeal is as follows: The plaintiffs and defendants are children born to Neelakandan in his second wife and first wife respectively. It is an admitted case that the plaint schedule property having an extent of 78 cents A.S.No.833 of 1998 - C 2 was purchased jointly in the name of Neelakandan and the first defendant. Ext.A1 is the sale deed by which the plaint A schedule property was purchased in the joint names of Neelakandan and first defendant. In 1964 Neelakandan executed a registered gift deed gifting his share of the property in favour of the first plaintiff. The donor put the donee, the first plaintiff, in possession of the property on the date of the gift deed and the first plaintiff accepted the gift deed and he is in possession and enjoyment of that property from the date of gift. There were some litigations between the plaintiffs and defendants. Those details are not necessary for disposal of this appeal. It is alleged in the plaint that the defendants colluded with each other with an intention to defeat the first plaintiff's right over the property covered by the gift and filed a suit before the trial court as O.S.No.184 of 1992 for partition on the strength of a will. The second defendant in O.S.No.916 of 1992 was the plaintiff in O.S.No.184 of 1992 and the first defendant in O.S.No.916 of 1992 is the sole defendant. The defendant in that suit remains exparte and consequently, an exparte preliminary decree for A.S.No.833 of 1998 - C 3 partition was passed. The plaintiff in that suit claimed share on the basis of a will alleged to have executed by Neelakandan, the father of the plaintiffs and defendants. The trial court passed a preliminary decree directing partition of one half of the plaint schedule property (39 cents) directing division in two shares allotting one such share each to the plaintiff and defendant in that suit. The allegation of the plaintiffs in this suit is that the defendants misled the court, practiced fraud upon the court and managed to get a preliminary decree for partition and further averred that the plaintiffs bonafide believe that the will produced in that case is a concocted one and created for the purpose of that litigation using the blank signed papers obtained from Neelakandan. According to the plaintiffs, the property scheduled in the O.S.No.182 of 1992 is not partible and parties therein have no right to get any share out of it. In the said circumstances, the present suit was filed for the declaration mentioned above. The defendants filed a written statement denying the averments in the plaint and set up title on the basis of the decree passed in O.S.No.184 of 1992. A.S.No.833 of 1998 - C 4 3. Before the trial court, the parties adduced evidence. PWs 1 & 2 were examined and Exts.A1 to A19 marked on the side of the plaintiffs and DWs 1 & 2 were examined and EXts.B1 to B13 marked on the side of the defendant. Ext.X1 also marked. 4. Trial court examined whether the gift deed executed by late Neelakandan in favour of the first plaintiff is valid, whether the decree in O.S.No.184 of 1992 is liable to be set aside and as to whether the defendants colluded each other for obtaining a decree in O.S.No.184 of 1992 of the Sub Court, Ernakulam and if so, whether the decree is liable to be declared as null and void. The trial court rightly observed that the deceased Neelakandan had one half share over the plaint schedule property, that in the absence of a valid testamentary disposition on the death of Neelakandan in the year 1991, his share would have devolved upon the plaintiffs and defendants and his other children and his living wife equally. The trial court also discussed the validity of the decree passed in O.S.No.184 of 1992. The said suit was filed by the second defendant claiming one half share in the property on the strength of an unregistered A.S.No.833 of 1998 - C 5 will said to have been executed by his father on 12.7.1991. The first and second defendants were arrayed in the suit are parties to the other suit. The plaintiffs and other legal heirs of deceased Neelakandan were not made parties in that suit. The judgment produced and marked as Ext.A11 shows that the first defendant herein who was the sole defendant in that case remain absent, set exparte and the plaintiff proved his case by filing an affidavit. The trial court rightly observed that the second defendant who filed O.S.No.184 of1992 on the strength of an unregistered will said to have been executed by his father had not chosen to prove the will under the provisions of the Indian Evidence Act. The court below also noticed that there was no attempt made by the plaintiff in that suit either to produce the original will or get it proved under the provisions of the Indian Evidence Act. For these reasons, the trial court held that there is no proof of the execution of the will on the strength of which the second defendant claimed his one half share over the property and to oust the other legal heirs of Neelakandan from inheriting him. The trial court also referred to the judgment in O.S.No.48 of A.S.No.833 of 1998 - C 6 1989, a suit filed by Neelakandan against defendants 1 and 2. In the said suit, it is alleged by the deceased Neelakandan that the second defendant in this case who is the defendant in that case was a trespasser and sought for the relief of eviction. The court below rightly held that in these circumstances, the execution of the alleged will by Neelakandan in favour of the second defendant was a remote possibility. The court below also resorted to Ext.X1 (A) which shows that in the name of Neelakandan there was an application filed before the Sub Registrar Officer, Thripunithura with a request to the Registrar to visit his house for execution of a cancellation deed, as he was laid up due to illness. Consequently, the Registrar visited the house of Neelakandan, but, could not cause registration of the document as the executant was not conscious. Trial court also examined the circumstances surrounding the execution of the will and observed that there is much suspicion about the conduct of the defendant and that there is every chance of the defendants acting hand in glove in having filed O.S.No.184 of 1992 and a decree obtained in collusion behind the back of the plaintiffs. The court on merits A.S.No.833 of 1998 - C 7 examined the contentions raised by the respective side on the question of genuineness of the will and held that the present second defendant who is the plaintiff in O.S.No.184 of 1992 failed to discharge the burden or proved the execution of the will on the strength of which the said suit was filed and obtained the decree. The trial court also taken note of the fact that in O.S.No.48 of 1989 the civil court upheld the validity of the gift deed executed in favour of the first plaintiff. After elaborate discussion of the evidence on record, the trial court concluded that the defendants 1 and 2 colluded each other in obtaining the decree in O.S.NO.184 of 1992 before the Sub Court, Ernakulam and therefore the plaintiffs are entitled to the reliefs of declaration sought for in the suit. 5. The above stated facts and evidence on record shows that the decree passed by the trial court declaring the judgment and decree in O.S.No.184 of 1992 as null and void and not binding on the plaintiffs or their right in the property and set aside the decree and judgment require no interference. I hold that the view taken by the court in deciding the issues is fair and A.S.No.833 of 1998 - C 8 reasonable in all respects. I do not find any reason to interfere with the findings entered by the court below. Consequential relief of injunction was also granted. In the result, appeal fails, and judgment and decree passed by the court below are confirmed. Accordingly, the appeal stands dismissed. No order as to costs. HARUN-UL-RASHID, JUDGE. bkn/-