IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 12TH FEBRUARY 2008 / 23RD MAGHA 1929 RSA.No. 1103 of 2006() ---------------------- AS.31/2001 of SUB COURT,NEYYATTINKARA OS.212/1997 of I ADDL.M.C.,NEYYATTINKARA .................... : APPELLANTS/APPELLANTS/DEFENDANTS ------------------------------------------------- 1. THANKAPPAN NADAR, S/O. ANDI NADAR, AGED 81 YEARS, RESIDING AT PUTHUVAL PUTHEN VEEDU, KULATHOOR VILLAGE, VENKADAMB DESOM, NEYYATTINKARA TALUK. 2. THANKARAJAN, S/O. THANKAPPAN NADAR, RESIDING AT PUTHUVAL PUTHEN VEEDU, KULATHOOR VILLAGE, VENKADAMB DESOM, NEYYATTINKARA TALUK. 3. UNNI, S/O. THANKAPPAN NADAR, RESIDING AT PINKULATHU KADAYARA VEEDU, KARODE DESOM AND VILLAGE, NEYYATTINKARA TALUK. 4. OMANA, D/O. PANKAJAKSHI, RESIDING AT PUTHUSSERIVILA VEEDU, KARODE DESOM AND VILLAGE, NEYYATTINKARA TALUK. 5. RADHA, D/O. PANKAJAKSHI, PUTHUVAL PUTHEN VEEDU, KULATHOOR VILLAGE, VENKADAMB DESOM, NEYYATTINKARA TALUK. 6. KRISHNAN, S/O. THANKAPPAN, PUTHUVAL PUTHEN VEEDU, KULATHOOR VILLAGE, VENKADAMBU DESOM. BY ADV. SRI.R.S.KALKURA SRI.M.S.KALESH SRI.M.R.SARIN SRI.HARISH GOPINATH SRI.V.VINAY MENON SRI.KIRAN SANKAR RESPONDENTS: RESPONDENT/PLAINTIFF ---------------------------------------------- SUKUMARAN @ MANIYAN, S/O. CHELLAKANNU NADAR, AGED 56, PUTHUVAL KADAYARA PUTHEN VEEDU, KULATHOOR VILLAGE, VENKADAMB DESOM, NEYYATTINKARA TALUK. BY THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 12/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON I.A.NO.2645/2006 IN R.S.A.NO.1103/2006 12.2.08 DISMISSED Sd/- M.Sasidharan Nambiar Judge /true copy/ P.S to Judge M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. NO. 1103 OF 2006 =========================== Dated this the 12th day of February, 2007 JUDGMENT Defendants in O.S.212/1997 on the file of Munsiff Court, Neyyattinkara are the appellants. Respondent is the plaintiff. Respondent instituted the suit for declaration of his title and possession. Plaint B schedule property is a portion of plaint A schedule property. Plaint C schedule property is a portion of plaint B schedule property. Plaint D schedule property is a shed in the plaint B schedule property. Second appellant is the sister of respondent. First appellant is her husband. Other appellants are their children. Plaint A schedule property originally belonged to Chellakanu Nadar the father of respondent and second appellant. Kalyani is his wife. They executed Ext.A1 will jointly on 26.4.1978. Properties were bequeathed in favour of first respondent and second appellant. Plaint B schedule R.S.A.1103/2006 2 property was bequeathed to first respondent. After the death of the parents, first respondent filed O.S.148/1988 against Kuttan, Viswananthan and wife and children of late Sundaran for declaration of his right and title to plaint B schedule property. Kuttan, Viswananthan and Sundaran referred to above are brothers of first respondent and second appellant. Dispute was in respect of the southern boundary line of plaint B schedule property. A decree was granted in favour of respondent. Respondent contended that appellants have no right to the plaint schedule property and second appellant filed an application before Tahsildar, Neyyattinkara and in that plaint C schedule property was measured and demarcated and found that it belongs to respondent. Contending that appellants are attempted to trespass into plaint C schedule property and plaint C schedule property is part of plaint B schedule property, suit was instituted seeking a decree for declaration and injunction. It was contended that second appellant R.S.A.1103/2006 3 was aware of O.S.148/1988 and the decree granted in favour of respondent and O.S.305/1993 was filed by Viswananthan and Kuttan Nadar against the second appellant and the judgment in O.S.148/1988 was produced in that suit by appellants and the decree and judgment were marked as Ext.A8 and A9 and appellants have no right over plaint B and C schedule property and respondent is entitled to the decree sought for. 2. Appellants resisted the suit contending that respondent has no right or title to the disputed plaint C schedule property. It was contended that second appellant and others executed Ext.B4 partition deed with respect to the properties and the said partition deed is binding on respondent and under that partition deed, plaint C schedule property was allotted to second appellant and respondent is therefore not entitled to the decree sought for. It was also contended that third appellant is in possession and enjoyment of the property as per the document executed by R.S.A.1103/2006 4 second appellant and while so third appellant transferred the property in favour of second appellant as per a registered document No.812/1996 and second appellant is in possession of the property and the property is resurveyed as 258/43. Mutation was effected and respondent has no right to the property. 3. Learned Munsiff on the evidence of Pw1, Dws.1 to 3 and Exts.A1 to A5 and Exts.B1 to B14 and Exts.C1 to C2(a) found that under Ext.A1 will plaint B schedule property was bequeathed in favour of respondent and plaint C schedule property forms part of plaint B schedule property and respondent has title to the property. Holding that plaint C schedule property which is plot CDJK in Ext.C2(a) plan and finding that appellants have no right or title to the property, a decree for declaration of title and recovery of possession of plaint C schedule property after demolishing D and E structures were granted. Appellants challenged the judgment before Sub Court, Neyyattinkara in R.S.A.1103/2006 5 A.S.31/2001. Learned Sub Judge on reappreciation of evidence confirmed the findings of learned Munsiff and dismissed the appeal. It is challenged in the second appeal. 4. Learned counsel appearing for appellants was heard. 5. The argument of learned counsel is that execution of Ext.A1 will was not proved and courts below were not justified in granting the decree based on Ext.A1. It was argued that in the absence of proof regarding execution of will as provided under section 68 of Indian Evidence Act and section 63 of Indian Succession Act respondent cannot claim title to the plaint schedule property and on the evidence courts below were not justified in granting a decree in favour of respondent when under Ext.B4 partition deed and Ext.B5 and B6 sale deeds appellants have title to the plaint schedule property. It was also argued that though the will was marked and proved in O.S.148/1988, appellants were not parties to the suit and finding with R.S.A.1103/2006 6 regard to the execution of the will is not binding on appellants and Ext.A1 will was a sham and nominal document which was never acted upon as the properties were divided under the partition deed subsequently without giving effect to the will and courts below should not have granted the decree. 6. On hearing the learned counsel, I do not find that any substantial question of law is involved in the appeal. 7. Though no evidence was addcued to prove execution of Ext.A1 will in the suit, as seen from Ext.A2 and A3 judgments the will was produced in O.S.148 of 1988 and its execution was proved and execution and validity of the will was upheld. That was a suit filed by respondent against the other brothers of respondent and first appellant. The dispute in that suit was also with regard to the very same plaint B schedule property which was bequeathed to respondent under Ext.A1 will. Moreover, as is clear from Ext.B10 in O.S.305/1993 a suit instituted by second appellant, the judgment R.S.A.1103/2006 7 and decree in O.S.148/1988 was produced and in that suit also upholding the execution of the will was recognised the right of respondent under the will even by second appellant. In the light of Ext.B10 judgment in O.S.305/1993 and Ext.A2 and A3 judgments in O.S.148/1988 there is no necessity for evidence to prove the execution of Ext.A1 will. Moreover, what was contended by appellants was that Ext.A1 will was only a sham and nominal document and was not acted upon and not that it was not executed. When the execution is not disputed and it was contended that it is only a sham and nominal document, no proof of execution of the will is necessary. A will would take into effect, on the death of the testator and nothing else is to be done for coming into force the will executed by the testator. 8. Courts below on appreciation of evidence found that under Ext.A1 will plaint B schedule was bequeathed to respondent and he has title to the property. Evidence also establish that plaint C R.S.A.1103/2006 8 schedule is part of plaint B schedule property. Therefore a decree for recovery of possession of plaint C schedule property after demolition of plaint D and E schedule structures was granted. I do not find any substantial question of law involved in the appeal. Appeal is dismissed in limine. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006