IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 25TH JUNE 2009 / 4TH ASHADHA 1931 RSA.No. 367 of 2009() --------------------- AS.221/2003 of ADDL.DISTRICT COURT,KOTTAYAM OS.284/2000 of MUNSIFF COURT, ETTUMANOOR .................... (S): APPELLANT/PLAINTIFF: ---------------------------------------- K.N.GOPALAN, S/O.LATE NARAYANAN, AGED 65 YEARS, RESIDING AT CHAKKUNGAL FROM KOCHUPARAMBIL, ARPOOKKARA KARA, ARPOOKKARA VILLAGE KOTTAYAM. BY ADV. SRI.A.BALAGOPALAN SMT.T.LAKSHMI SMT.KALA G.NAMBIAR SRI.A.RAJAGOPALAN RESPONDENT(S): RESPONDENTS/DEFENDANTS: -------------------------------------- 1. MANY, S/O.LATE NARAYANAN, AGED 63 YEARS, RESIDING AT CHAKKUNGAL FROM KOCHUPARAMBIL, ARPOOKKARA KARA, ARPOOKKARA VILLAGE. 2. THANKAPPAN, AGED 59 YEARS, S/O.LATE NARAYANAN, RESIDING AT CHAKKUNGAL FROM KOCHUPARAMBIL, ARPOOKKARA KARA, ARPOOKKARA VILLAGE KOTTAYAM. 3. KUNJACHAN, AGED 51 YEARS, S/O.LATE NARAYANAN, RESIDING AT CHAKKUNGAL FROM KOCHUPARAMBIL, ARPOOKKARA KARA, ARPOOKKARA VILLAGE 4. KUNJAMMA, AGED 55 YEARS, D/O.LATE NARAYANAN AND W/O.VIJAYAN, KANNAMPARAMBIL HOUSE, PARAMBUZHA KARA, PERUMBAYIKKADU VILLAGE. 5. RADHA, AGED 53 YEARS, D/O.LATE NARAYANAN AND W/O.REGHU, RSA.No. 367 of 2009() 2 PUTHUMANAPPARAMBIL, CHAKKARA PARAMBU, PALARIVATTOM, KAYANAUUR TALUK. 6. PENNAMMA (DIED) 7. RAJESH, AGED 30 YEARS, S/O.GOPALAN, USHA BHAVAN (PALATHIL), MANGANAM KARA, VIJAYAPURAM VILLAGE. 8. SAVITHRI, AGED 58 YEARS, RESIDING AT CHAKKUNGAL FROM KOCHUPARAMBIL, ARPOOKKARA KARA, ARPOOKKARA VILLAGE. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 25/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID, J. --------------------------------------- R.S.A.No.367of 2009 ---------------------------------------- Dated this the 25th day of June, 2009 JUDGMENT The Second Appeal is directed against the judgment and decree in A.S.No.221/2003 of the Additional District Court, Kottayam. The plaintiff in O.S.No.284/2000 is the appellant. The suit was filed for setting aside Ext.A2 will, for partition and for consequential injunction. The suit dismissed by the trial court was confirmed in appeal. Hence this second appeal. 2. The parties are referred to as plaintiff and respondents. The plaintiff and defendants 1 to 5 are the children of Narayanan and 6th defendant. The plaint schedule properties belongs to Narayanan who is the father of defendants 1 to 5 and husband of the 6th defendant. The plaintiff filed the suit on the allegation that Ext.A2 will was executed by the father in favour of defendants is not genuine and is the result of undue R.S.A.No.367of 2009 2 influence exerted by the first and second defendant. The plaintiff prayed for setting aside Ext.A2 will and for partition and separate possession of 1/7 share of the plaint schedule property. The trial court examined the contentions of respective parties in the light of oral and documentary evidence. PWs.1 to 6, Dws.1 to 4, A1 to A11, B1 and X1 are appreciated and evaluated. 3. On a consideration of the various contentions of both parties the trial court held that the plaintiff did not dispute the execution of the will. The only case set up by the plaintiff is that the father executed the will due to the undue influence exerted by the 1st and 2nd defendants. The said issue was considered in detail and the trial court on evidence held that the story set up by the plaintiff is not supported by any evidence and it cannot be accepted. The trial court also held that no independent evidence is adduced by the plaintiff to support the story of undue influence alleged to be exerted by the 1st defendant upon R.S.A.No.367of 2009 3 the father. The further contention of the plaintiff that the father was mentally incompetent to execute the will was also examined and the trial court held that there is absolutely no evidence to prove that the father was mentally incompetent. Other related questions were also examined regarding the execution of Ext.A2 will. The contention that under Section 63 of the Indian Evidence Act is not complied is negatived. Both courts found that Ext.A2 will is proved by the defendant under Section 68 of the Indian Succession Act. 4. The dismissal of the suit for the aforesaid reasons was upheld by the lower appellate court. The very same contentions were raised before the Appellate Court. The Appellate Court also examined all such contentions and took the same view. I do not find any ground to take a different view other than the view expressed by the fact finding courts. The appellant has not made out any sustainable grounds to invoke the jurisdiction under Section 100 of the R.S.A.No.367of 2009 4 C.P.C. No question of law much less any substantial question of law arises for consideration in this second appeal. This appeal fails and accordingly dismissed. (HARUN-UL-RASHID, JUDGE) skj.