IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 23RD JUNE 2010 / 2ND ASHADHA 1932 AS.NO. 181 OF 2000(B) --------------------- OS.242/1996 OF I ADDL.SUB COURT,ERNAKULAM .................... APPELLANT(S)/PLAINTIFFS: ----------------------------- 1. PREMAN, SON OF NARAYANAN, CHANIYA MURIYIL, CHENGANATTU DESOM, ELAMKULAM VILLAGE, KANAYANNUR TALUK. 2. SHANTA, DAUGHTER OF NARAYANAN, DO. DO. BY ADV. SRI.G.SREEKUMAR (CHELUR) RESPONDENT(S)/ DEFENDANTS : --------------------------------------- 1. VASANTHI, WIFE OF RAMESHAN, CHANIYA MURIYIL, CHENGANATTU DESOM, ELAMKULAM VILLAGE, KANAYANNUR TALUK. 2. RESHMI, D/O RAMESHAN, DO. DO. 3. RESHANT, S/O RAMESHAN, DO. DO. 4. SUKUMARAN, S/O KUNJAYYAPPAN, KAITHAVALAPPIL HOUSE, AROOR VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT. 5. THILOTHAMA, W/O SUKUMARAN, DO. DO. 6. SATISHAN, S/O SUKUMARAN, DO. DO. 7. DINESHAN, S/O SUKUMARAN, DO. DO. NOW RESIDING AT STAFF QUARTERS, FIRE STATION, MATTANCHERY. ADV. SRI.T.V.ANANTHAN THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 23/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = = A.S. NO. 181 OF 2000 = = = = = = = = = = = = = = = Dated this the 23rd day of June, 2010. J U D G M E N T This appeal is preferred against the judgment and decree passed by the First Addl. Subordinate Judge, Ernakulam in O.S.242/96. The suit is one for partition with respect to three schedules of property. A schedule is the property which jointly belonged to Pushpavally, plaintiffs and Rameshan. B schedule is the property which belonged to the husband of the first defendant namely Rameshan. C schedule is the money which the first defendant has got on the death of Rameshan from his office namely the Cochin Port Trust. It is the case of the plaintiffs that on the death of Rameshan and after the death of the mother, the properties are liable to be divided and thereafter she is claiming right over the property of Rameshan as A.S. 181 OF 2000 -2- well as over the property of the mother of which the widow and children of a predeceased son is entitled to get share. 2. So far as the B schedule is concerned it is contended that the mother's share which is 1/4th would equally devolve upon the plaintiff, Santha and the defendants and so such a share is also to be worked out. C schedule also is claimed in the same fashion. On the other hand the defendants would contend that the plaint schedule property that is described in A schedule also belongs to them as the legal representatives of Rameshan as well as the legal representative of the mother of Rameshan namely Pushpavally. In B schedule also they would contend besides getting absolute 3/4th right over the property as the legal representatives of Rameshan they are also entitled to the share of A.S. 181 OF 2000 -3- the property which devolved upon Pushpavally as the legal representatives of deceased Rameshan. In C schedule also it is the contention. 3. Now in the plaint there is a specific contention that Santha, the sister, had relinquished her 1/4th right in the property and further the mother had executed a Will in favour of the first plaintiff whereby her share as well as the share obtained by her as legal representative of her deceased son Rameshan had been bequeathed in favour of the first plaintiff. With respect to B schedule also the plaintiff claims right over the property which the mother had obtained and that had been bequeathed by virtue of the Will. In C schedule also the same is the contention. Therefore everything depends upon the acceptability of the Will which is executed by Pushpavally in favour A.S. 181 OF 2000 -4- of the first plaintiff. The defendants 1 to 3 would contend that Pushpavally could not have executed such a Will on her own volition and free consent and further it is the outcome of undue influence, coercion, fraud etc. played on Pushpavally and therefore that document will never confer any right on the first plaintiff with respect to the right of Pushpavally and so that has to be ignored and partition has to be effected. So the whole question depends upon the acceptability of the Will. Now the evidence tendered in support of the Will is the oral evidence of PWs.1 to 3. 4. PW1 is the propounder of the Will. He is an employee in the Sub Registrar office. He would depose that the mother had executed the Will in his favour and therefore he is entitled to the right. He is not a witness to the A.S. 181 OF 2000 -5- document. PW2 is one Maya. She is a relative of the plaintiff and defendants 1 to 3. According to her Pushpavally came to her residence and told her that she is executing a Will in favour of the first plaintiff and thereafter they had gone to the Registrar's office and Pushpavally had seen the attesting witnesses affixing her signature and she has seen Pushpavally affixing her signature. She had also spoken about the other attesting witnesses putting the signatures in the Will and she would further depose that Pushpavaly also had seen the attesting witnesses affixing her signature in the Will. She has also deposed that Pushpavally was mentally in a fit state of condition to execute the Will. 5. In the cross examination it is brought out that there was some ailment for Pushpavally A.S. 181 OF 2000 -6- at a later point of time and ultimately she was treated in the Medical Trust Hospital. It is deposed by her, on the date of execution of the Will, Pushpavally came to her residence and requested her to witness the Will. They had gone together to scribe's office and the document was written and it was read over to the executant and thereafter only signatures had been put. 6. Now the evidence of PW2 is challenged by the other side mainly on two points namely that she had only seen Pushpavally affixing two signatures and PW2 had stated that nobody else was there at the time of the execution of the Will whereas PW3 has deposed about the persons in his office. Now it has to be remembered that the defendants are challenging the Will only on the ground of undue influence, coercion and not A.S. 181 OF 2000 -7- on the basis of lack of execution or that Pushpavally was not in a fit state of mind to execute the Will. 7. PW3 is a person who has identified the signature of Pushpavally before the Registrar. He knows Pushpavally. He had deposed before Court regarding the signature put by Pushpavally before the Registrar and has identified her as Pushpavally. 8. I also refer to the endorsement in Ext.A2 which reveals that executant has admitted the execution of the document and she had been identified and the document has been registered. It has been registered from the Registrar's office. 9. DW1, who is challenging the Will would assert that the Will has been executed by compulsion, fear and so on and the reason for A.S. 181 OF 2000 -8- stating so, according to her, is that PW1 had equal love and affection for her husband as well. The evidence of PWs.2 and 3 does not suffer from any infirmity at all. They had spoken about the execution of the Will, the presence of the attesting witnesses, the mental capacity of Pushpavally and therefore the evidence is sufficient u/s 63 of the Indian Evidence Act regarding the proof of execution of the Will. 10. Now the two other points to be considered are, one is whether there is any suspicious circumstances surroundings the execution of the Will and the other is whether coercion or undue influence is used for the preparation of the Will. The suspicious circumstance projected surrounding the execution of the Will is that the first defendant and her A.S. 181 OF 2000 -9- children were excluded from inheriting any property. It is brought out that PW1 was residing with Rameshan. According to the defendant it was till the death of Rameshan and thereafter she was taken by the plaintiff. It is seen from the plaint itself that the relatives of the first defendant has started living in the house where Rameshan lived and therefore it is nothing but natural a mother would like to join her son who is also well placed in life. It can be seen that Pushpavaly was not a patient who was bed ridden. She was a heart patient from 1983 onwards. She continued treatment and ultimately breathed her last on 18.11.93 on account of her heart problem. The Will is executed on 25.9.93. Except the fact that she is a heart patient no other materials are available before Court to show that she was A.S. 181 OF 2000 -10- a person not capable of understanding the consequences of her action and that she did not have the mental capacity to execute the document. Therefore repeated use of the word 'suspicious circumstances' will not be a substitute for proof. 11. Now the next question is regarding undue influence and coercion. It is a settled position of law that when the contract is challenged and said to be vitiated on the grounds mentioned under the provisions of the Contract Act the person who makes such allegations are expected to prove the same. But u/s 16 (2) and (3) of the Act when it is established that the person who had executed the will was in a position whereby the person exercising the influence was able to dominate the will of other person to his unfair advantage and that the said person was of A.S. 181 OF 2000 -11- a weak health, feeble minded then the person who sets up the document should have to prove the same. So the first aspect is whether there is any undue influence at all. Any sort of influence is not undue influence. For example a child living with parents and parents executing documents in favour of the children because they live together, one cannot say that children were in a position to dominate the will of the parents. Similarly unless one is able to impress upon the Court to think by making use of that an unfair advantage was obtained, then only one can say that there is undue influence. So just because a will is executed in favour of one child excluding the other one shall not jump to the conclusion of undue influence. Here plaintiff has looked after his mother who was suffering from heart disease. I do not find any A.S. 181 OF 2000 -12- peculiar circumstances to warrant a presumption regarding undue influence. There is nothing to show that Pushpavally was having only a weak and feeble mind and she was not able to understand the consequences of her action. So there cannot be any deemed domination of the Will as provided u/s 16(2) of the Evidence Act. 12. The Hon'ble Supreme Court of India in the decision reported in Subhas Chandra Das Mushib v. Ganga Prasad Das Mushib (1967 KHC 591) had made it explicitly clear that when one pleads undue influence the party has to plead the precise nature of the influence exercised, the manner of use of the influence and the unfair advantage obtained by the other. 13. So far as this case is concerned except the three limbs the first two limbs are not available in the pleadings even. It has also to A.S. 181 OF 2000 -13- be stated the case law had been discussed and principles have been clearly laid down in the latest decision of the Hon'ble Supreme Court reported in Savithry v. Karthyayani Amma (2007 (4) KLT 811(SC). In that decision the Court has stated how a will has to be proved when the 'Will' can be said to be vitiated by undue influence etc. In paragraphs 14 and 15 of the judgment the Hon'ble Supreme Court has held that the burden of proving the allegation of coercion is on the person who alleges the same. I am conscious of the fact that when ingredients u/s 16(2) and (3) are established the burden may shift on the propounder. As stated by me earlier except the repeated use of the word 'undue influence' nothing is forthcoming before this Court to establish the same. Therefore from these discussions I think the evidence is A.S. 181 OF 2000 -14- sufficient to hold that Pushpavally was in a fit state of mind capable of understanding the consequences of her action and had executed Ext.A2 and it is proved by the evidence of PWs. 1 to 3 and there is nothing to show that she was dominated by the plaintiff in order to create a will. So I hold that Ext.A2 will is properly proved and it is not vitiated by fraud or coercion and there are no suspicious circumstances surrounding the execution of the Will. Learned Subordinate Judge had really cast the burden wrongly without looking the conditions attached to S.16(2) and (3) of the Contract Act and therefore it has committed the error. So I find that Ext.A2 Will is valid. 14. Now let me decide on the shares. A schedule property belonged to Pushpavally, Remashan, Preman and Santha and each entitled to A.S. 181 OF 2000 -15- 1/4 shares. By virtue of a surrender deed Santha's right had devolved upon Preman. So also by virtue of the Will Pushpavally's right also had devolved upon him making 3 out of 4 shares. Rameshan's one out of 4 shares would devolve upon the mother and defendants 1 to 3 equally, i.e. 1/16 shares each. Pushpavally's share(mother) would go to 1st plaintiff by virtue of the Will. So if plaint A schedule is divided into 16 equal shares, 1st plaintiff would be entitled to 13 such shares and defendants 1 to 3, one such share each. 15. B schedule exclusively belongs to Rameshan and on Rameshan's death that property had devolved upon his wife, two children and Pushpavally. By virtue of Ext.A2 executed by Pushpavally's right in Rameshan's property goes to the first plaintiff. So if the plaint B A.S. 181 OF 2000 -16- schedule properties are divided into four equal shares, one such share will go to the first plaintiff and 3/4 shares will be allotted to defendants 1 to 3 together. So far as C schedule is concerned this Court persuaded the learned counsel for the plaintiff not to proceed for the reason it is a benefit obtained on the death of the husband. Therefore he is not pressing for that so I delete C schedule from partition. 16. Therefore the appeal is allowed and a preliminary decree for partition is passed as follows. (1) A schedule property be divided into 16 equal shares and allot 13 such shares to the first plaintiff and three such shares jointly to defendants 1 to 3. A.S. 181 OF 2000 -17- (2) Plaint B schedule property be divided into 4 equal shares and to allot one such share to the first plaintiff and three such shares to the defendants 1 to 3 together. Shares of D1 to D3 in A and B schedule be allotted subject to payment of Court fee. (3) Considering the extent involved there will not be any direction for any of the parties to give mesne profits. (4) Parties are at liberty to apply for final decree. (5) Partition of C schedule is not allowed. M.N. KRISHNAN, JUDGE. ul/- A.S. 181 OF 2000 -18- M.N. KRISHNAN, J. = = = = = = = = = = A.S. No. 181 OF 2000 = = = = = = = = = = = J U D G M E N T 23rd June, 2010.