IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 19TH JANUARY 2010 / 29TH POUSHA 1931 AS.No. 74 of 1996 ------------------- OS.570/1992 of PRINCIPAL SUB COURT, PALAKKAD .................... APPELLANTS: -------------- *1. KUTTY MANNADIAR, PANDRAPADOM, (DIED LRs RECORDED) PALLASSANA, ALATHUR TALUK, PALGHAT. 2. KAVERI, W/O CHINNASWAMI MANNADIAR, ENTHALPADOM, NANNIODE (PO), CHITTUR TALUK. 3. VELLAMMA, W/O.SIVARAMA MANNADIAR, TEA SHOP, NANNIODE (PO), CHITTUR TALUK. 4. MEENAKSHI, W/O.GOPALAKRISHNA MANNADIAR, NEAR KANNADI U.P.SCHOOL, PALGHAT. 5. VASU MANNADIAR, S/O.KANNA MANNADIAR, PULINKOTTUTHARA, KOLLENGODE. 6. SATHYABHAMA, W/O.SWAMINATHAN, THOTTU KULAMBU, KARINKULAM, CHITTUR TALUK. 7. VANAJA,D/O.VASU MANNADIAR, PULINKOTUTHRA, KOLLENGODE. 8. BHAGYAM, D/O.VASU MANNADIAR, -DO- 9. MANI, S/O.VASU MANNADIAR, --DO-- BY ADV. MR.SATHISH NINAN MR.SANTHOSH MATHEW RESPONDENTS: --------------- 1. A.A.SWAMINATHAN, S/O.APPU MANNADIAR, ADICHIRA, PUDUNAGARAM, CHITTUR TALUK. 2. A.A.VISWANATHAN, S/O.APPU MANNADIAR, PANDARAPADOM, PALLASSANA, ALATHUR TALUK. (CNTD...2) AS.No.74 of 1996 ::2:: 3. A.A.MURUKAN, S/O.APPU MANNADIAR, PANDARAPADOM, PALLASSANA, ALATHUR TALUK. 4. A.A.BALAKRISHNAN, PANDARAPADOM, PALLASSANA, ALATHUR TALUK. 5. A.A.MOHANAN, S/O.APPU MANNADIAR, PANIKKATHIL HOUSE, KOTTAPPURAM, TRICHUR - 4. 6. JANAKI, W/O.SETHUMADHAVAN, AMBALATHU HOUSE, PANDARAPADOM, PALLASSANA, ALATHUR. 7. PADMAVATHI, W/O.UNNIKRISHNAN, PANDARAKAVU, NEAR MANAPULLIKAVU, PALGHAT. 8. RAJAMMA, W/O.VENKATASWARAN, PANDARAPADOM, PALLASSANA, ALATHUR TALUK. 9. GOPI, S/O.VASU MANNADIAR, PULIMKOTTUTHARA, KOLLENGODE. 10. RAJESWARI, D/O.VASU MANNADIAR, PULIMKOTTUTHARA, KOLLENGODE. 11. RAMAN, S/O.VASU MANNADIAR, PULIMKOTTUTHARA, KOLLENGODE. *IT IS RECORDED THAT 2ND, 3RD, 6TH, 7TH, 8TH AND 9TH APPELLANTS AND 1ST TO 7TH AND 9TH TO 11TH RESPONDENTS ARE THE LEGAL HEIRS OF THE DECEASED 1ST APPELLANT AS PER ORDER DATED 20.11.2009 IN I.A.NO.4076/2009. ADV. MR.SREEKUMAR CHELUR MR.K.RAMA KUMAR, SENIOR ADVOCATE FOR R1 MR.T.RAMPRASAD UNNI FOR R1 MR.T.K.CHINNAN FOR R4, R9 AND R11. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 19/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: AS.No.74 of 1996 ORDER ON C.M.P.NO.346/1996 IN A.S.NO.74/1996 DISMISSED. 19.1.2010 SD/- HARUN-UL-RASHID, JUDGE. // TRUE COPY // P.A TO JUDGE. HARUN-UL-RASHID, J. ----------------------------------- A.S.No.74 of 1996 - A --------------------------------- Dated this the 19th day of January, 2010 J U D G M E N T The plaintiffs in O.S.No.570 of 1992 on the file of the Sub Court, Palakkad are the appellants. The plaintiffs, nine in number, filed the suit for partition. On the basis of the finding recorded by the trial court that Ext.B1 will is true, genuine and validly executed by deceased Appu Mannadiar, court below held that the plaint schedule properties are not partible and hence the suit was dismissed with costs. Aggrieved by the decree and judgment dated 25.10.1995, plaintiffs have preferred this appeal. Parties hereinafter referred to as the plaintiffs and defendants as arrayed in the suit. 2. Plaintiffs are the widow and daughters of late Appu Mannadiar. Defendants 1 to 5 are the sons of Appu Mannadiar and defendants 6 to 8 are the other daughters. The plaint schedule properties, 21 items in number, admittedly, belong to the father of plaintiffs 2 to 5 and defendants 1 to 8. The suit was filed by the plaintiffs stating that the plaint schedule properties A.S.No.74 of 1996 2 devolved upon the plaintiffs and defendants equally on the death of Appu Mannadiar and they claimed 5/13 shares. It is pleaded that the plaintiffs came to know about a will of 1974 alleged to have been executed by Appu Mannadiar in favour of his five sons bequeathing the entire property in their favour. Plaintiffs contended that the will is not genuine, valid and not duly and validly executed and attested. 3. The first defendant in his written statement contended inter alia that all the items scheduled in the plaint are the self acquired properties of Appu Mannadiar; that he had executed a will in the year 1974 in favour of his five sons; that on his death the properties covered by the will devolved upon his sons. The sons are in separate possession and enjoyment of the properties by paying tax. The material averments in the plaint were denied by the first defendant and contended that the properties are not available for partition and prayed for dismissal of the suit. 4. Defendants 2 to 5 have filed a joint written statement. They supported the plaintiffs' claim and claimed that the sons of Appu Mannadiar are entitled to inherit the properties of their father along with the plaintiffs and other daughters. A.S.No.74 of 1996 3 5. The suit was tried along with a connected suit, namely, O.S.No.85 of 1994 on the file of the same court. The said suit was filed by the first defendant in O.S.No.570 of 1992 against the fourth defendant for a perpetual injunction restraining the defendant from trespassing into the property scheduled in the plaint. The trial court decreed O.S.No.85 of 1994. We are not at present concerned with the decree and judgment passed in the said suit. The findings in that suit has become final. There is no appeal preferred by the defendant in the said suit. 6. Validity of Ext.B1 will is the important question examined by the trial court. If Ext.B1 will is found to be genuine, the consequential findings to be followed is that the properties are not partible and therefore the suit is liable to be dismissed. 7. Ext.B1 is the will alleged to have been executed on 25.6.1974 . Plaint schedule properties are the properties covered by Ext.B1 will. By Ext.B1 will Appu Mannadiar bequeathed the said properties in favour of defendants 1 to 5, who are his sons. The will is a registered one. There are two attesting witnesses. They have acted also as identifying witnesses. The will was prepared by a scribe. It has come out in evidence that the fourth A.S.No.74 of 1996 4 defendant is in possession of Ext.B1 will. The first defendant filed necessary applications before the court below for a direction directing the fourth defendant to produce the will before the court. Though the court below issued a direction to the fourth defendant to produce the will, he failed to do so. The attesting witnesses to the will were examined as DWs 3 and 4. They have turned hostile and therefore they were cross examined by the contesting defendants' counsel. The Sub Registrar was examined as DW1. 8. From the circumstances borne out in evidence the court below having satisfied that the witnesses deliberately and falsely denied the attestation of the will, examined the other circumstances in order to ascertain due attestation of the will. The court below relied on certain decisions citing one by one wherein the principles stated are to the effect that when the court is satisfied that the witnesses deliberately and falsely denied that they attested the will, the court is entitled to look into the other circumstances and the regularity of the will on the face of it and come to the conclusion on the question of attestation. A.S.No.74 of 1996 5 9. In this case, before DWs 3 and 4 were examined by the court, they have filed two affidavits at the instance of the plaintiffs marked as Exts.A1 and A2. In the said affidavits, they swear that they have not acted as attesting witnesses to Ext.B1 will. DW3 testified before the court that the affidavit was prepared at the instance of the plaintiffs' counsel. In the box also witnesses maintained the same stand as stated in the affidavit. 10. The will was executed in the year 1974. At the time of execution of the will, Appu Mannadiar was aged 71. Nobody has a case that he was physically or mentally weak. The only contention is that the will is not properly attested and validly executed. The plaintiffs' has no case that the executant's mental and physical condition are not sound and therefore he has no sound disposing mind. The only contention raised is that it is not validly executed, attested by witnesses, not genuine etc. Attesting witnesses examined as DWs 3 and 4 had admitted the execution of Ext.B1 will and further admitted that they have put their signature in the document. There is endorsement of the document writer in the document that he has prepared the will and put his signature. It is stated that the scribe is no more and A.S.No.74 of 1996 6 therefore he was not examined. Ext.B1 will shows that both the witnesses went to the Sub Registrar's office and identified as attestors before the Sub Registrar and they have also acted as identifying witnesses. The certificate of registration executed by the executant, identified by the two witnesses proved that the executant was present before the Sub Registrar and he was identified by the two witnesses and that the executant had affixed his signature and left thumb impression. The executant and the witnesses had put their signatures and left thumb impressions in the presence of others. The court below disbelieved the testimonies of DWs 3 and 4 that they did not see the attestor nor identified him before the Sub Registrar. Court below was compelled to draw an adverse inference from the evidence of defendants 3 and 4 and noted that they have identified the executant before the Sub Registrar. The circumstances discussed and appreciated by the court below and the adverse inference drawn by the court below are justified in the facts and circumstance of the case. The court below also examined the subsequent events including the conduct of the parties after the execution of Ext.B1 will. The said circumstances A.S.No.74 of 1996 7 are discussed in detail in paragraph 10 of the judgment. The court below referred to the notice issued on behalf of 7th defendant dated 28.3.1990 marked as Ext.B6 demanding partition of the properties to defendants 1, 2 and 4. Ext.B7 is the reply. In Ext.B7 there is reference to the registered will executed on 26.5.1974. It is also intimated to the 7th defendant in the said reply that the properties devolved upon the five sons as per the will on the death of the testator. The 7th defendant was also informed that the five sons are in separate possession of the properties. The trial court also relied on Ext.B2 assignment dated 6.5.1992 by which the third defendant has sold items 9 and 10 in the will to the first defendant. Title to the property referred to in Ext.B2 is that of Appu Mannadiar and the execution of Ext.B1 will. The trial court also had taken note of the fact that the first defendant's contention that the house obtained by the second defendant as per the will has been sold by him and he has purchased one acre of land out of the sale proceeds. The circumstances and the conduct of the parties subsequent to the execution of the will also go to show that the properties are in the possession of the sons in terms of Ext.B1 will after the death A.S.No.74 of 1996 8 of the father. The court below also referred to the testimony of PW1 where in she admitted that the tax receipts stands in the name of his sons after the death of his father. That was also taken as a circumstance to conclude that Ext.B1 will was acted upon and the legasees are in possession of the properties as per the will. The contentions raised by the first defendant that the daughters were given ornaments and utensils at the time of marriage and that they are living with their husbands; that sons alone stay with the father; that the parties follow marumakkathayam law of inheritance; that the execution of the will itself would be to prevent the daughters from inheriting his property and to see that the five sons are given the property are also appreciated in the right manner. After giving all the items of properties to the five sons, there are other provisions in the will provided for protecting the interest of the wife of the executant. The sons are obliged to supply certain amount of paddy periodically to the mother and the mother was given the freedom to reside in the family house till her death. All the above said facts and circumstances are well appreciated and well considered by the trial court leading to the conclusion that Ext.B1 will is true, A.S.No.74 of 1996 9 genuine and validly executed by Appu Mannadiar in favour of his five sons. In such circumstances the finding of the court below that the properties are not available for partition has to be upheld. No other questions arises for consideration in this appeal. In the result, the appeal fails, and, the 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/-