IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 31ST AUGUST 2010 / 9TH BHADRA 1932 AS.No. 78 of 1999(D) ------------------- OS.254/1994 OF ADDL.SUB COURT, PALAKKAD .................... APPELLANT(S)FIRST DEFENDANT: -------------------------------------- CHAMY, S/O VELAYUDHAN, RESIDING AT PANDARAKAVU AMSOM, ELAPULLY VILLAGE, PALAKKAD TALUK. BY ADV. SRI.V.CHITAMBARESH SRI.T.C.SURESH MENON RESPONDENT(S)/PLAINTIFF/SECOND DEFENDANT: ---------------------------------------------------------- 1. MANI, S/O VELAYUDHAN, RESIDING AT AMBATTUKALAM, VALIYAVALLAMPATHY VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT. 2. SUBRAMANIAN, S/O VELAYUDHAN, RESIDING AT PANDARAKAVU AMSOM, ELAPPULLY VILLAGE, PALAKKAD DISTRICT. ADV. SRI.T.M.SUNIL SMT.S.CHITHRA FOR THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 31/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = = A.S. NO. 78 OF 1999 = = = = = = = = = = = = = = = Dated this the 31st day of August, 2010. J U D G M E N T This appeal is preferred against the judgment and decree passed by the Subordinate Judge, Palakkad in O.S.254/94. The plaintiff and defendants are the children of one Velayudhan and Velayudhan died in the year 1988 leaving behind his three children and widow, Kunchu. It is the case of the plaintiff that Kunchu has executed a Will with respect to her share in favour of the plaintiff and therefore when the property is divided the plaintiff is entitled to 2/4 shares and the defendants one share each. On the other hand the first defendant would contend that the property belonged to the joint family consisting of Velayudhan and his children and therefore the sons are entitled to right by birth and the mother will be only entitled to a fractional share. It is also contended that the mother was not in a fit state of mind to execute the A.S. 78 OF 1999 -2- Will and therefore it will not confer any right on the plaintiff. It is further contended that the mother and others had entered into an agreement for the sale of their share in favour of the first defendant for a consideration of Rs.30,000/- and towards the same he had paid Rs.4,000/-. So that agreement also deprives the plaintiff from claiming any right over the property. 2. The trial Court on an analysis of the materials arrived at a decision that the Will is valid and genuine, the agreement is not enforceable and the property belonged to Velayudhan and therefore ordered division of the property into four equal shares and to allot two such shares to the plaintiff. It is against that decision the first defendant has come up in appeal. 3. Heard the learned counsel for the appellant as well as the respondent. Let me first consider about the nature of the properties. It is the case of the first defendant that the property is having the character of a A.S. 78 OF 1999 -3- joint family property and that Velayudhan had acquired the property with the nucleus of the joint family. Except for the mere ipsi dexit of the first defendant no materials are forthcoming to establish that there was any joint family property or nucleus so as to obtain this property. So it is very clear that the property belonged to Velayudhan. The admission in Ext.B1 also would reveal that the property belonged to Velayudhan and the four are entitled to equal right over the property. Therefore it has to be held that the property in question belonged to Velayudhan and on his death it had devolved upon the three sons and his wife Kunchu. 4. The next contention is regarding the correctnesses of the Will. By virtue of Ext.A1 the mother namely Kunchu had bequeathed her right in favour of the plaintiff. According to the plaintiff it was written by her of her own volition and consent and that she was able to understand the consequences of her action. On the other A.S. 78 OF 1999 -4- hand the first defendant would contend that she was of a feeble mind and there was no necessity for her to execute the Will. 5. In support of his contentions the plaintiff had examined PW2 and PW3. PW2 is a scribe and the attesting witness and PW3 is an attesting witness. PW2 had clearly deposed that Kunchu had come to his office and on her instructions he had prepared the Will and that he had seen the executant signing the Will and she had seen himself and PW2 signing the Will. He had also spoken about the witnesses seeing the signature being affixed in the Will. According to him it was she who had given the instructions and she had the mental capacity to give instructions. Though he had been cross-examined at length nothing had been brought out to discredit his evidence. He is an experienced document writer having an experience of more than 35 years and his evidence is having credibility. A.S. 78 OF 1999 -5- 6. PW3 is a neighbour and attesting witness. He had also deposed that at the instance of Kunchu he had gone with her to the scribe's office and the Will was prepared and it was read over and she had signed the document and both himself and the scribe had seen her signing in also and that she had seen these people signing the document. He had also spoken about the mental capacity of the lady. So as contemplated by S.63 of the Indian Succession Act execution of the Will is proved. 7. It is contended by the learned counsel for the appellant that there is difference in the signature in each page of the Will and it gives rise to suspicion. It has to be remembered that Kunchu is an illiterate lady and she had put only the pen mark, each has difference in each page. It only adds credence to the signature and if it was a calculated one it would not have been in that fashion and when it was presented before the Sub Registrar she had A.S. 78 OF 1999 -6- admitted the execution of the document. Her thumb impression is also there in the document. Therefore the mere change in the style of signature does not militate against the case of the plaintiff. 8. Now regarding the mental condition. It has to be stated that the first defendant admits about the agreement to sell executed on 17.11.91. There also the mother had only affixed her thumb impression in the document. There is no quarrel for the first defendant that she was capable of understanding the consequences of her action at that time. The present Will is executed only within a period of two and half months in February, 1992 and she had breathed her last in December, 1992. There is nothing to show that she was incapable of understanding the consequences of her action and therefore there is no suspicious circumstances surrounding the execution of the Will. Therefore I uphold the genuineness and correctnesses of the Will. A.S. 78 OF 1999 -7- 9. Lastly, it is contended that there was an agreement to sell by virtue of Ext.B1 agreement and therefore there was no intention for the mother to execute the Will in favour of the plaintiff. The defendant himself had admitted that he had paid Rs.4,000/- and the consideration was Rs.30,000/-. He had not parted with any other money and he was not in a position to pay the amount. The defendant himself committed the breach of contract and he has not moved his little finger to get the contract specifically enforced. The agreement itself has elapsed by the conduct of the defendant. Therefore the contention that Ext.B1 will come to the rescue also cannot be accepted. 10. The learned young counsel for the appellant strongly contends that the trial Court has erred in not awarding any interest on Rs.4,000/-. As discussed and found by me earlier it was the defendant who has committed the breach and therefore he will not be A.S. 78 OF 1999 -8- entitled to claim any interest under the principles of equity. Therefore I do not find any ground to interfere with the decision rendered by the trial Court and therefore the appeal fails and the same is dismissed but under the circumstances without any costs. M.N. KRISHNAN, JUDGE. ul/- A.S. 78 OF 1999 -9- M.N. KRISHNAN, J. = = = = = = = = = = A.S. No. 78 OF 1999 = = = = = = = = = = = J U D G M E N T 31st August, 2010.