IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 27TH MARCH 2009 / 6TH CHAITHRA 1931 AS.No. 143 of 1995() -------------------- OS.100/1990 of SUB COURT, KASARAGOD .................... APPELLANT/PLAINTIFF -------------- SMT.MUKAMBIKA, W/O.VENKATRAMMA BHAT, AGED ABOUT 82 YEARS, REP. BY HER POWER OF ATTORNEY V.KRISHNA BHAT, S/O.VENKATRAMANA BHAT AGED ABOUT 62 YEARS, HINDU AGRICULTURIST, RESIDING AT SAJANKUBETTU IN AJJIBETTA VILLAGE AND POST, BANTAL TALUK, D.K.KARNATAKA STATE. (DIED) LR'S IMPLEADED ADDL.SECOND APPELLANT. V.KRISHNA BHAT, SAJANKUBETTU IN AJJIBETTA VILLAGE BANTAL TALUK, D.K.KARNATAKA STATE IS IMPLEADED AS ADDITIONAL SECOND APPELLANT AS PER ORDER DATED 9/3/99 IN CMP 1211/98 BY ADV. SRI.N.L.KRISHNAMOORTHY SRI.K.LAKSHMINARAYANAN SRI.D.ANIL KUMAR SMT.SATHYA SREEPRIYA RESPONDENTS/DEFENDANTS --------------- 1. SMT.PARVATHI AMMA, AGED ABOUT 45 YEARS, HOUSE HOLDER, RESIDING AT NEERAMOLE HOUSE, BADOOR VILLAGE, KASARGOD TALUK, POST DHARMATHAKDA 2. SRI.KRISHNA, AGED ABOUT 27 YEARS, TEACHER, S/O.LATE GANAPATHI BHAT RESIDING AT NEERAMOLE HOUSE, BADOOR VILLAGE, KASARGOD TALUK POST DHARMATHAKADA 3. SURYANARAYANA, AGED ABOUTB 23 YEARS, S/O.LATE GANAPATHI BHAT, RESIDING AT NEERAMOLE HOUSE, BADOOR VILLAGE, KASARGOD TALUK, POST DHARMATHAKDA 4. VENKATRAMANA, AGED ABOUT 21 YEARS, S/O.LATE GANAPATHI BHAT, RESIDING AT NEERAMOLE HOUSE BADOOR VILLAGE, KASARAGOD TALUK, POST DHARMATHAKADA ADDL.RESPONDENTS 5 TO 7 5. GOURI AMMA, W/O.VENKATARAMANA BHATTA, KONGOTTU HOUSE, MADIKAI VILLAGE AND POST, (VIA) NEELESWAR KASARAGOD DISTRICT 6. V.GOVINDA BHAT, NEERAMOLE, DHARMTHAKADA POST, KASARAGODE DISTRICT 7. V.NARAYANA BHAT, S/O.MOOKAMBIKAMMA, SAJANKUBETTU IN AJJIBETTA VILLAGE AND POST, BANTAL TALUK, D.K.DISTRICT, KARNATAKA STATE. THE SOLE APPELLANT DIED AND ADDITIONAL RESPONDENTS 5 TO 7 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF THE DECEASED APPELLANT AS PER ORDER DT.9/3/99 IN CMP 427/99 ADV. SRI.M.C.SEN,JAYAPRAKASH SEN, SRI.M.P.SREEKRISHNAN FOR SMT.SHAHNA KARTHIKEYAN THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 27/03/2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. ------------------------------------------ A.S.NO. 143 OF 1995 ------------------------------------------ Dated 27th March 2009 JUDGMENT Plaintiff in O.S.100/1990 on the file of Sub court, Kasaragod is the appellant. Defendants are the respondents. Suit was instituted by the mother of V.Ganapathi Bhat claiming partition of plaint A and B schedule properties. First respondent is the widow and respondents 2 to 4, the children of Ganapathi Bhat. Suit was instituted by another son of appellant as her power of attorney holder. Plaint A schedule property admittedly originally belonged to the family of Ganapathi Bhat and his brothers. The joint properties were divided under Ext.A1 partition deed dated 3/6/1983. Plaint A schedule properties were allotted to the share of Ganapathi Bhat. Ganapathi Bhat died from the hospital while on treatment on 9/7/1988. Suit was filed by the mother of Ganapathi Bhat claiming that on the death of Ganapathi Bhat 1/5 share devolved on her and respondents 1 to 4 together are entitled to remaining 4/5 shares. Respondents AS 143/95 2 resisted the suit contending that Ganapathi Bhat executed Ext.B1 will on 26/6/1988 out of his free will and volition bequeathing his entire right in their favour and therefore the mother is not entitled to claim any share. It was also contended that under Ext.A1 partition, power of attorney holder of the appellant has to pay 325 K.gs of areca nuts per year and it was defaulted and after the death of Ganapathi Bhat respondents instituted O.S.293/1990 before Munsiff court, Bantwal claiming arrears due and the suit was filed because of that grudge. 2. Learned Sub Jude framed necessary issues. On the side of respondents, second respondent was examined as DW1. Scribe of Ext.B1 will was examined as DW2. One of the attesting witnesses to Ext.B1, who is none other than brother of Ganapathi Bhat as well as PW1 was examined as DW2. Exts.B1 to B6 were also marked on their side. On the side of plaintiff, her son who is her power of attorney holder, was examined as PW1. Exts.A1 to A4 were marked. Learned Sub Judge on the evidence found that Ext.B1 will is a true and genuine will executed by the deceased Ganapathi Bhat out of his free will and volition and therefore on the death of AS 143/95 3 Ganapathi Bhat his rights would go as provided under Ext.B1 will and in view of the will appellant mother will not inherit any property. Suit was dismissed. Appeal is filed challenging the judgment. 3. When the appeal was pending appellant died. Power of attorney holder son was impleaded as second appellant on the strength of a will allegedly executed by the deceased appellant. When respondents 1 to 4 disputed the will, respondents 5 to 7, the other legal heirs of the deceased appellant were also impleaded. As genuineness of the will allegedly executed by the appellant was disputed, this court called for a finding on the genuineness of the will from Sub court, Kasaragod. Learned Sub Judge thereafter conducted an enquiry on the said question and sent the finding dated 12/8/1999 holding that genuineness of Ext.A1 will, as executed by the deceased appellant was not established. Second appellant has filed an objection to said finding contending that learned Sub Judge did not properly appreciate the evidence. 4. Suit was filed by the mother of Ganapathi Bhat claiming that on the death of her son, AS 143/95 4 husband of first respondent and father of respondents 2 to 4, his 1/5 share devolved on her and therefore she is entitled to get that share separated. Learned Sub Judge upholding Ext.B1 will dismissed the suit. Question to be decided in this appeal is whether Ext.B1 will was executed by the deceased Ganapathi Bhat and if so, whether his mother would inherit any right in the plaint schedule property. If Ext.B1 is a true and genuine will executed by the deceased Ganapathi Bhat in his sound disposing state of mind and was not vitiated, appellant mother will not inherit any right over the property. Therefore, if the finding of the learned Sub Judge on genuineness and validity of Ext.B1 will is to be upheld, the appeal can only be dismissed. In any event, there is no necessity to decide the question whether the will produced by the second appellant as the one executed by the deceased appellant is true and genuine. 5. Point for consideration in the appeal is whether Ext.B1 will was executed by the deceased Ganapathi Bhat and if so, whether it is valid and if so whether deceased appellant mother is entitled to a share. AS 143/95 5 6. Apart from the second respondent son of Ganapathi Bhat, respondents examined DW2 the scribe and one of the attesting witnesses to Ext.B1 will. Learned Sub Judge after analysing the evidence found the evidence of Dws.2 and 3 credible and reliable. Based on their evidence, it was found that Ext.B1 will was executed by deceased Ganapathi Bhat in his sound disposing state of mind and out of his free will and volition. Argument of the learned counsel appearing for appellant is that learned Sub Judge did not properly appreciate the evidence and the suspicious circumstances were not properly born in mind. It was argued that as is clear from Ext.B2 treatment record Ganapathi Bhat was admitted at Mangalore Nursing Home and treated as an inpatient till 23/6/1988 on which day he was discharged. Learned counsel argued that as seen from Ext.B3, Ganapathi Bhat was again admitted in the hospital on 29/6/1988 from where he breathed his last on 9/7/1988. Argument is that deceased testator was discharged on 23/6/1988 not because his illness was cured but as no purpose will be served from further treatment. Apart from the arguments, there is no evidence to prove that the discharge on 23/6/1988 was AS 143/95 6 either for the reason that condition of Ganapathi Bhat was bad or that no purpose will be served by further treatment. On the other hand, DW3 who is none other than the brother of the second appellant as well as the testator establish that when Ganapathi Bhat was discharged from the hospital on 23/6/1988 he was cured of the illness. Ext.B3 shows that he was again admitted in the hospital on 29/6/1988 for renal problems, acute cardiac infraction as well as urinary problem. On the other hand, Ext.B2 does not reveal any of these ailments except urinary problem. Therefore, for the reason that deceased Ganapathi Bhat had developed either cardiac problem or renal problem subsequent to his discharge and had to be re-admitted on 29/6/1988 cannot automatically lead to a conclusion that he was having those illness even on 23/6/1988. Ext.B2 reveals only treatment for urinary problem. As against this argument evidence of DW1 the son and DW3 the brother of the deceased establish that deceased Ganapathi Bhat was in a sound disposing state of mind when he was discharged from the hospital on 23/6/1988 and till he was re-admitted in the hospital on 29/6/1988. Therefore, for the reason that Ganapathi Bhat was AS 143/95 7 discharged from the hospital on 23/6/1988 and was again admitted on 29/6/1988 it is not possible to hold that Ganapathi Bhat was not in a sound disposing state of mind on 26/6/1988 when Ext.B1 will was seen executed. 7. Though learned counsel appearing for appellant argued that as Ext.B1 will was executed on 26/6/1988, which was three days after the discharge on 23/6/1988 and three days before re-admission on 29/6/1988, it is clear that he was got discharged for the purpose of creating a will, I cannot agree with the submission. If that was the intention of the widow or the children they would have got Ext.B1 will registered. As Ext.B1 will, is an unregistered will, it could have been executed even from the hospital. Therefore, in the absence of evidence to prove that deceased testator was not in a sound state of mind it is not possible to accept the submission that Ext.B1 will was not executed by Ganapathi Bhat out of his sound disposing mind. More over, it may be his illness which persuaded Ganapathi Bhat to execute a will. 8. As stated earlier, DW3 is the brother of the deceased testator and also the second appellant. AS 143/95 8 It is to be born in mind that if there is no will executed by Ganapathi Bhat 1/5 share would definitely devolve on the mother. Mother was aged at that time. Hence on her death DW3 is also entitled to get an equal share like second appellant. In such circumstances, DW3 who is a beneficiary if no will exists, in the ordinary course would not support a forged will as against his own interest. On going through the evidence of DW3, I find no reason whatsoever to disbelieve him. So also, evidence of DW2 establish that under the instructions of the deceased testator he had written Ext.B2 will. Evidence of second appellant as PW1 shows that after cross examination, he made an attempt to claim that signature seen in Ext.B1 is not that of the testator. As rightly pointed out such a case was not put to DW3 who unambiguously identified the signature of the testator seen in Ext.B1 as that of his brother, the deceased testator. It is also seen from the plaint and also admitted by PW1 that before institution of suit for partition, respondents 1 to 4 had instituted a suit for realisation of the amount due in lieu of arecanuts to be given by PW1 under Ext.A1 partition deed claiming AS 143/95 9 right under Ext.B1 will. Though learned counsel appearing for appellant vehemently argued that Ext.B1 will was not mentioned in Ext.A2 notice sent by respondents 1 to 4 claiming the amount due to their father and so Ext.B1 will was created subsequently, on the evidence, I cannot accept the submission. Though existence of the will is not mentioned in Ext.A2 notice sent on 4/6/1990 plaint itself disclose that to the notice demanding partition a reply was sent by respondents on 15/7/1990, wherein it has been specifically pleaded that properties belonging to the father now belong to them under the will executed by the deceased Ganapathi Bhat. It is also clear from the fact that in the plaint itself appellant has stated that Ganapathi Bhat had not executed the will as claimed by respondents 1 to 4. Even then appellant had no case that the signature seen in Ext.B1 will is not that of the deceased Ganapathi Bhat. In such circumstances, I have no hesitation to hold that learned Sub Judge rightly appreciated the evidence and upheld Ext.B1 will. I find no reason to differ. Therefore, deceased appellant who was disinherited under Ext.B1 will not inherit any right in plaint A AS 143/95 10 schedule property as those properties were bequeathed by Ganapathi Bhat in favour of respondents, his wife and children. Learned Sub Judge therefore rightly dismissed the suit. In view of these findings question whether the will allegedly executed by the appellant bequeathing her right in favour of second appellant is genuine or valid is not to be decided in this appeal. Appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj. AS 143/95 11 ============================= M.SASIDHARAN NAMBIAR,J. JUDGMENT A.S.NO.143 OF 1995 27th March 2009 ============================