IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN WEDNESDAY, THE 25TH MARCH 2009 / 4TH CHAITHRA 1931 RSA.No.263 of 2009 (F) ---------------------------- AS.70/2005 of II ADDL. DISTRICT COURT, PALAKKAD OS.377/2001 of ADDL.MUNSIFF COURT, PALAKKAD .................... APPELLANT/APPELLANT/PLAINTIFF ------------------------------------------- KRISHNAVENI, W/O. RAJAN, THIRUNELLAYIPALAYAM, THIRUNELLAYI POST PIRAYIRI AMSOM PALAKKAD TALUK AND DISTRICT. BY ADV. SRI.SAJAN VARGHEESE K. RESPONDENT/RESPONDENT/DEFENDANT ------------------------------------------------- ARUMUGHAN, S/O. MURUKAN, THIRUNELLAYIPALAYAM, THIRUNELLAYI POST, PIRAYIRI AMSOM, PALAKKAD TALUK AND DISTRICT. ADV. SRI.P.R.VENKETESH THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 25/03/2009, ALONG WITH RSA NO.238 OF 2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ R. S. A Nos.263 & 238 of 2009 ------------------------------------------------ Dated this the 25th day of March, 2009 JUDGMENT R.S.A.263/09 arises out of O.S.377/01 on the file of the Munsiff's Court, Palakkad wherein the plaintiff who lost her case concurrently in both the courts below is the appellant. RSA.238/09 arises out of O.S.888/01 on the file of the Munsiff's Court, Palakkad wherein defendants 1 and 2 who lost their defence concurrently in the courts below are the appellants. The second appellant in RSA.238/09 is the sole appellant in RSA.263/09 and her husband is the first appellant in RSA.238/09. 2. In RSA.263/09 arising out of O.S.377/01, the case of the appellant/ plaintiff is that the property which belonged to Ponnan alias Chinnappan Chettiyar was bequeathed by him under Ext.A1 will R. S. A Nos.263 & 238 of 2009 -2- dt.08/10/85 in favour of her husband/Rajan and consequent on death of Chinnappan Chettiyar in 1991, the will has come into effect and her husband/Rajan obtained the scheduled property under the will and he in-turn assigned the property under Ext.A2 to her in 1996 and she is accordingly in exclusive possession and enjoyment of the scheduled property of 29 cents and that the respondent/defendant Arumughan is attempting to trespass upon an extent of 5 cents of property from out of the said 29 cents claiming rights on the basis of Ext.B2 agreement allegedly executed by Chinnappan Chettiyar in his favour. 3. In RSA.238/09 arising out of O.S.888/01, the appellant/plaintiff in O.S. 377/01 and her husband were defendants and the suit was instituted by one of the daughters of Chinnappan Chettiyar and four children of Murukan/the predeceased son of Chinnappan R. S. A Nos.263 & 238 of 2009 -3- Chettiyar impleading one other daughter of Chinnappan Chettiyar also as the third defendant for recovery of possession of the scheduled property therein with mesne profits from the appellants/defendants 1 and 2 claiming right under Chinnappan Chettiyar by intestacy. That suit was resisted by the appellants/defendants 1 and 2 setting up Ext.A1 will in defence. The trial court found that Ext.A1 will is not genuine and therefore, the subsequent assignment by the first defendant in favour of his wife/ the second defendant of the scheduled property under Ext.A2 is also not valid and consequently, decreed O.S.888/01. The suit O.S.377/01 filed by Krishnaveni/the second defendant in O.S.888/01 was also dismissed as it was found in O.S.888/01 that she has not acquired any right under Ext.A2 assignment executed by her husband on the strength of the alleged R. S. A Nos.263 & 238 of 2009 -4- bequeath in his favour under Ext.A1 will. 4. Both O.S.377/01 and O.S.888/01 was being disposed of by a common judgment conducting a joint trial of the two suits and considering the evidence adduced in common for both the suits which consisted of oral evidence of PWs.1 and 2 and DWs.1 and 2 and documentary evidence Exts.A1 to A5 and Exts.B1 to B5. The present appellants in RSA.238/09 filed AS.64/05 against the decree in O.S.888/01 and the second appellant therein filed AS.70/05 against the decree in O.S.377/01. Both those appeals were dismissed by the first appellate court vide common judgment passed in the said appeals on 06/10/08 and hence, these R.S.As. 5. It cannot be contended for a moment that if genuineness of Ext.A1 will cannot be upheld, the right claimed under Ext.A1 by the first appellant/Rajan and the right claimed by R. S. A Nos.263 & 238 of 2009 -5- his wife/Krishnaveni the second appellant from the first appellant under Ext.A2 assignment cannot confer any right on her and therefore, she will not be having any locus standi to get a decree for recovery of possession of five cents alleged to have been trespassed upon by Arumughan/the respondent in RSA.263/09 who is the defendant in O.S.377/01 and also that the appellants will not be able to resist the suit O.S.888/01 filed by the legal heirs of Chinnappan Chettiyar who claimed right by intestacy. 6. It is vehemently contended before me by the learned counsel for the appellants that Ext.A1 will should have been accepted as genuine by the courts below in view of the convincing evidence tendered by PW2/ the first attester to Ext.A1. PW2 is none other than a close relative of Chinnappan Chettiyar as according to him, Chinnappan Chettiyar has R. S. A Nos.263 & 238 of 2009 -6- married his elder sister. His evidence in the sworn affidavit is that on death of Vellappan Chetty/the brother of Chinnappan Chettiyar, Chinnappan Chettiyar was residing with Rajan son of Vellappan Chetty. According to him, Ext.A1 will was written by the scribe/ Gopalakrishna Iyer at the document writers office basing on details furnished by Chinnappan Chettiyar and after reading it out to Chinnappan Chettiyar and on his approval it was got typewritten and thereafter Chinnappan Chettiyar signed in the said will and thereafter he signed as an attestor and thereafter the second attestor also signed as an attester and finally the scribe also signed in Ext.A1 will. According to him, himself the second attester/Karuppuswamy and the scribe had witnessed the testator signing in Ext.A1 will and that the testator has witnessed himself Karuppuswamy and the scribe signing R. S. A Nos.263 & 238 of 2009 -7- therein; and that himself and Karuppuswamy had mutually witnessed their signing as attestors. When he was tendered for cross examination, further questions were also put to him by way of chief examination and he has deposed that he has written and signed as attestor No.1 and Karuppuswamy has written and signed as the second attestor. In cross examination though he stated initially that he has signed as an attestor only in Ext.A1, he stated that he has signed as attestor also in Ext.A2. Ext.A2 is assignment of the property covered by Ext.A1 will by Rajan in favour of his wife/ Krishnaveni who are the appellants herein. He has stated that his signature is a marking after writing his name as seen in Ext.A1. According to him, for the purpose of execution of Ext.A1 will the testator had told him the previous day that he should come over the next morning and that the testator; the first R. S. A Nos.263 & 238 of 2009 -8- appellant and Karuppuswamy/the second attestor came over to his house and took him also to the civil station where the scribe was sitting behind a table placed at the portico of the Sub Registry Office and the Scribe took him to his office and Ext.A1 was being got prepared there. 7. He has also stated that wife of Chinnappan Chettiyar passed away five to six years prior to execution of Ext.A1 will and that even prior to execution of Ext.A1 will, the testator was residing with PW1/Rajan who is the first appellant in whose favour is the will executed. But according to PW1, the wife of the testator died only in 1987 after execution of Ext.A1 will in 1985. According to PW2, the testator was depending solely on PW1 though he does not say whether the daughters of Chinnappan Chettiyar or the children of Murukan/the predeceased son of Chinnappan R. S. A Nos.263 & 238 of 2009 -9- Chettiyar were not looking after Chinnappan Chettiyar. 8. In cross examination, he has categorically stated that in Ext.A1 the attestors have written their name and address themselves and that he himself has written his name and address as first attestor. He has also admitted that the signature of the second attestor is not seen as against the name and address of the second attestor written in Ext.A1. In cross examination, PW2 has also admitted that he is husband of the younger sister of mother of PW1/Rajan who is the first appellant. It was suggested to him in cross examination that Ext.A1 was being brought into existence falsely so as to take possession of the scheduled property though he has denied the said suggestion. What comes from the evidence of PW2 is that the second attestor/Karuppuswamy has not signed as an R. S. A Nos.263 & 238 of 2009 -10- attestor in Ext.A1 as sworn to by him in chief examination. It is seen from photostat copy of Ext.A1 will passed on to me for perusal by the counsel for the appellants that the names of the two attestors are in the same handwriting and the handwriting in writing the name and address of attestor Nos.1 and 2 tallies in all respects including the mistakes therein over and above the similarity and identity in the writings. It cannot be believed for a moment in the circumstances that Karuppuswamy wrote his name and address as attestor No.2 as the writings are in any event by the same person who has written the name and address of attestor No.1. According to PW2, his name and address as attestor No.1 is written by him in his hand. If that be so, the name and address of attestor No.2 also is written in his own hand and that accounts for the absence of signature of the second attestor in Ext.A1 R. S. A Nos.263 & 238 of 2009 -11- will. The courts below have observed that PW1 has given evidence that Murukan/the son of Chinnappan Chettiyar died in 1984 and that the wife of Chinnappan Chettiyar died in 1987. If Murukan/the son of Chinnappan Chettiyar died in 1984 naturally one would expect recital in relation thereto in Ext.A1 will. Further, if his wife died only in 1987 the reason for not giving any share to the wife should naturally find a place in Ext.A1 especially when reason is seen stated for not giving property to his children and children of deceased Murukan. On the other hand, the version of PW2 is to the effect that the wife of Chinnappan Chettiyar died five or six years prior to Ext.A1. The evidence of PW1 is that the testator had been living with him ever since the death of his wife which according to him was in 1987. 9. It is worthy to note that there is no evidence in the case that wife of Chinnappan R. S. A Nos.263 & 238 of 2009 -12- Chettiyar had been living separately during his life time. The court below having had occasion to see original of Ext.A1 has observed that a ballpoint refill pen has been used to sign in Ext.A1 and that Ext.A1 also appears to be a fumigated document and that the colour of papers used for execution of Ext.A1 appears to be brown though it is executed only in 1985 and it was not time for white paper to turn brown by the time it was let in evidence. It was rightly observed by the courts below that there is no explanation offered as regards Ext.A1 will being typewritten especially when it has been deposed by PW2 that the will was drafted by Gopalakrishna Iyer/the scribe in his own hand. No explanation is offered as to on whose request Ext.A1 will executed as early as in 1985 in Malayalam is typewritten as such practice was very rare during that period R. S. A Nos.263 & 238 of 2009 -13- among document writers. It was also observed by the courts below that PW1/the legatee under the will has not taken any step for effecting mutation or paying land tax to the Government even after death of the testator, but that on the other hand, he executed Ext.A2 in favour of his wife/the second appellant who is the sole plaintiff in O.S.377/01 who has not entered the witness box to stand the test of cross examination. 10. Suffice to say that I am on full agreement with all the reasons assigned by the courts below to disbelieve the alleged genuineness of Ext.A1 will. Consequently, therefore, the decree passed in favour of the plaintiffs in O.S.888/01 concurrently by the courts below as also the dismissal of O.S. 377/01 concurrently by the courts below do not deserve to be interfered with in these R.S.As. These R.S.As are devoid of any merit and no R. S. A Nos.263 & 238 of 2009 -14- question of law and much less any substantial question of law arises for consideration in these R.S.As. 11. In the result, I dismiss both these R.S.As in limine. K.P.BALACHANDRAN, JUDGE kns/-