IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 6TH JULY 2009 / 15TH ASHADHA 1931 AS.No. 501 of 1999(A) --------------------- OS.421/1995 of PRL.SUB COURT,KOTTAYAM .................... APPELLANT(S): -------------- K.A. RADHAKRISHNAN NAIR, KOTTAYIL HOUSE, MARIYATHURUTHU KARA, KUDAMALLOOR, AYMANAM VILLAGE, NOW RESIDING AT PADMA HOUSE, -DO- -DO- BY ADV. SRI.MATHEW JOHN (K) RESPONDENT(S): --------------- 1. SANKARA PILLAI, THEKKEKUTTU HOUSE, NOW RESIDNG AT KOTTAYIL HOUSE, KUDAMALOOR, MARIATHURUTHU KARA, AYMANAM VILLAGE. 2. VIJAYAKUMAR, COLLEGE PROFESSOR RESIDING AT GAYATHRI HOUSE, AYRIOOR POSTAL AREA, PERUMBAPADAPPU TALUK, MALAPPURAM. 3. PADMINI RAJAN, GAYATHRI HOUSE, AYIROOR OF -DO- -DO- ADV. SRI.T.I.DANIEL THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 31/07/2009, THE COURT ON 06/07/2009 DELIVERED THE FOLLOWING: A. S .No. 501 of 1999(A) ORDER ON C.M.P. NO:4036/1999 ON A.S. NO: 501 OF 1999 DISMISSED. SD/- (M.L.JOSEPH FRANCIS) JUDGE M. L. JOSEPH FRANCIS, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - A. S. NO: 501 OF 1999 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 5th Day of August, 2009. JUDGMENT This appeal is filed by the plaintiff in O.S. No.421 of 1995 on the file of Principal Sub Court, Kottayam. Respondents 1 to 3 herein are the defendants 1 to 3 in that suit. O.S. No.421 of 1995 is a suit for partition. 2. The facts of the case are briefly as follows: The plaint item No.1 property belongs to Gopalakrishna Pillai who is the mother's brother of the appellant and the first respondent, who is also another brother of the appellant's mother as per partition deed No.2745 of 1981 of the Sub Registrar's office, Kottayam. Plaint item No.2 property and item No.3 building in the said property was included in the 'B Schedule' of the Partition Deed No.725 of 1971 of the Kottayam Sub Registrar's office. As per the said document, the said A.S . NO: 501 OF 1999 :2: property is set apart to one Narayanan Pillai Gopala Pillai, the father of respondents 2 and 3, the appellant's mother Karthiayayini Amma, Gopalakrishna Pillai, Appellant's uncle Sankara Pillai, 1st respondent and the plaintiff in equal shares. The 1/5 the right in favour of the appellant and his mother was gifted as per gift deed No.2747 of 1991 of the S.R.O. Kottayam in favour of Gopalakrishna Pillai and the 1st defendant. Thus Gopalakrishna Pillai obtained 2/5th share in the plaint items 2 and 3. Narayana Pillai Gopala Pillai who is the father of respondents 2 and 3 later died and his 1/5th share in the plaint items 2 and 3 devolved on his children namely, respondents 2 and 3. The appellant further averred that his uncle Gopalakrishna Pillai was unmarried and his mother Narayani Amma pre-deceased him. Gopalakrishna Pillai died on 29.1.1983 and on his death the entire rights of Gopalakrishna Pillai in items 1 to 3 devolved on his father Achuthan Pillai as per the provisions contained in the Hindu Succession Act, 1956. Sri Achuthan Pillai died on 6.12.1996 and the A.S . NO: 501 OF 1999 :3: appellant's mother Karthiyayini Amma died on 20.11.1986. Hence on the date of death of Achuthan Pillai on 6.12.1996 the half right in plaint item No.1 and 2/5 th right in plaint items 2 and 3 are devolved on Achuthan Pillai from Gopalakrishna Pillai in turn devolved on the appellant as well as the 1st respondent in equal shares. Thus the appellant is entitled to 1/4th right in plaint items No.1 and 1/5th right in plaint item No.2 and item No.3 building in plaint item No.2 property. The parties are in the joint possession of appellant as well as the respondent. In spite of the repeated request by the appellant to the 1st respondent to effect partition and deliver separate possession of the plaint schedule properties the 1st respondent did not accede to the request. Hence the suit was filed by the appellant praying for partition and for separate possession with mesne profits. 3. The 1st respondent filed a written statement admitting the devolution of right in respect of the items 1 to 3 of late Gopalakrishna Pillai. But he contended that late Gopalakrishna Pillai had executed a A.S . NO: 501 OF 1999 :4: Will on 3.1.1983 and as per said Will the entire rights in favour of Gopalakrishna Pillai was set apart in his favour. Thus the 1st respondent resisted the claim of the appellant relying on the Will alleged to have been executed by deceased Gopalakrishna Pillai. 4. The appellant filed a detailed replication disputing the genuineness of the Will put forward by the 1st respondent for the first time in his written statement. He specifically contended that the Will is a forged and concocted document. 5. In the Sub Court PW1 and DW1 to DW3 were examined and Exts. A1 to A7 and B1 to B3 were marked. The learned Sub Judge on considering the evidence found that Ext.B1 is a genuine Will executed by deceased Gopalakrishna Pillai in favour of first defendant and as such first defendant has got absolute title over the plaint schedule property and the suit was dismissed without costs. Against that judgment and decree, the plaintiff filed this appeal. 6. Heard the learned counsel for the appellant and learned A.S . NO: 501 OF 1999 :5: counsel for the respondents. 7. Learned counsel for the appellant submitted that the learned Sub Judge went wrong in finding that Ext.B1 is a genuine Will executed by deceased Gopalakrishna Pillai and that even if it is considered as a genuine Will, it relates only with regard to the plaint schedule item No.1 property alone and as such the appellant / plaintiff is entitled to get a share over the plaint schedule item No.2 and 3. Whereas the learned counsel for the respondents submitted that Ext.B1 is a genuine Will as per that Will, the share of Gopalakrishan Pillai over the plaint schedule items 1 to 3 devolved upon the first defendant alone. 8. The relationship between the parties is not disputed. The plaintiff is the son of Karthiayayini Amma. Karthiayayini Amma was the sister of the first defendant and deceased Gopalakrishna Pillai. The plaint schedule item No.1 property was alloted to the share of first defendant and Gopalakrishna Pillai as per Ext.A2 Partition Deed No: A.S . NO: 501 OF 1999 :6: 2745/81 as 'A Schedule'. The 'B Schedule' in that Partition Deed was allowed to the share of Karthiayayini Amma and first defendant. The plaint schedule item No. 2 and plaint schedule item No.3 building were allotted to the share of Karthiyayani Amma, Gopalakrishnan Pillai and Narayanan Pillai Gopala Pillai, as per Ext.A3 Partition Deed No. 725/1971. Defendants 2 and 3 are the children of Narayanan Pillai Gopala Pillai. The plaintiff and his mother Karthiyayani Amma gifted their 2/5th share over the plaint schedule item No.2 and 3 in favour of Gopala Krishna Pillai and first defendant as per Ext.A4 Gift Deed No.2747/81. Gopalakrishna Pillai was an astma patient and he was unmarried and he died of Cancer on 29.1.83. According to the plaintiff, at the time of death, Gopalakrishna Pillai had 1/ 2 right in the plaint schedule item No.1 property and 2/5 shares in the plaint schedule items 2 and 3. The plaintiff alleges that on the death of Gopalakrishna Pillai, his right over the plaint schedule property devolved upon his father Achuthan Pillai. Achuthan Pillai died on 5.12.86 and Karthiyayini A.S . NO: 501 OF 1999 :7: Amma, the mother of plaintiff died on 20.11.86. The plaintiff alleges that after the death of Achuthan Pillai, his right over the plaint schedule property devolved upon the plaintiff and first defendant on equal shares and therefore the plaintiff is entitled to 1/ 4 share over the plaint schedule item No.1 and 1/ 5 share over the plaint schedule item No.2 and 3. The first defendant contends that before his death, Gopalakrishna Pillai executed Ext.B1 un-registered Will on 3.1.1983 bequeathing his share over the plaint schedule property in favour of first defendant and after his death, the entire property devolved upon first defendant. 9. The main question to be considered in this case with regard to the genuineness of Ext.B1 Will. It is a well settled principle that a burden is on the propounder to prove due and valid execution of the Will and if there is any suspicious circumstances surrounding in the execution of the Will propounder must remove suspicion from the mind of the court by adducing satisfactory evidence. There is no law A.S . NO: 501 OF 1999 :8: which says that a Will is compulsory registrable. Section 18 of the Registration Act provides that registration of the Will and other documents not compulsorily registrable under Section 17, thereof is optional. Ext.B1 is an un-registered Will dated 3.1.1983. When the plaintiff was examined as PW1, he admits that his mother and Gopalakrishna Pillai were residing in Kottayil house along with the first defendant. PW1 deposes that Velayundhan Nair second attesting witness to the Ext.B1 will is his uncle and first attesting witness is a near relative. PW1 admits that he had borrowed Rs.56,000/- from the first defendant and when he did not repay that amount, the first defendant filed a suit against him for recovery of the amount and the present suit for partition was filed after the institution of that suit by the first defendant. 10. The first defendant is a High School teacher. Gopalakrishna Pillai is the brother of first defendant. First defendant is examined as DW1. DW1 deposes that Gopalakrishna Pillai executed Ext.B1 Will on A.S . NO: 501 OF 1999 :9: 3.1.1983. DW1 deposes that Gopalakrsihna Pillai wrote the Will in his own handwriting and that Gopalakrishna Pillai prepared Ext.B1 Will in consultation with an advocate's clerk who is no more now. DW1 deposes that handwriting, signature and thump impression seen on the Ext.B1 are that of Gopalakrishna Pillai. 11. DW2 is an attesting witness to Ext.B1 will. DW2 deposes that he saw Gopalakrishna Pillai writing Ext.B1 Will and affixing signature and thump impression in Ext.B1 Will and at that time Gopalakrishna Pillai was of sound disposing mind. DW3 is another attesting witness. DW3 swears that he saw Gopalakrishnan Pillai and DW2 signing Ext.B1 Will and that they saw DW2 signing Ext.B1 Will. DW3 deposes that at the time of execution of Ext.BW1 Will, Gopalakrishna Pillai was sensible and that Gopalakrishna Pillai executed Ext.B1 Will with the intention to bequeath all his right in favour of the first defendant. Nothing was brought out by the plaintiff to discredit the testimony of DW1 to DW3. The plaintiff has no case A.S . NO: 501 OF 1999 :10: that Gopalakrishna Pillai executed any will after the execution of Ext.B1 Will. Therefore the learned Sub Judge is perfectly justified in finding that Ext.B1 is the last will of deceased Gopalakrishna Pillai and it is true and genuine Will. In Ext.B1, it is mentioned that movable and immovable property belonging to Gopalakrishna Pillai were bequeathed in favour of the first defendant. Therefore, the plaintiff cannot claim any right of the share of Gopalakrishna Pillai over the plaint schedule item No. 1 to 3. Therefore, the learned Sub Judge is perfectly justified in dismissing the suit. Accordingly this appeal is dismissed and judgment and decree in O.S. No. 421 of 1995 on the file of Principal Sub Court, Kottarakkara in dismissing the suit is confirmed. The parties are directed to suffer their respective costs in this appeal. M. L. JOSEPH FRANCIS, JUDGE. dl/