IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 15TH JULY 2009 / 24TH ASHADHA 1931 AS.No. 710 of 1997(E) --------------------- OS.231/1993 of PRL.S.C.,THALASSERY .................... APPELLANTS/PLAINTIFFS: -------------------------------------- 1. NARIKUTTY PRASANNA, W/O. JAYAPALAN, GOURI COTTAGE, PAYYAMBALAM, KANNUR. 2. P.N. SREEPALAN, SON OF JAYAPALAN, DO. DO. BY ADV. SRI.V.RAJAGOPAL & SMT.A.S.VIDYA RESPONDENTS/DEFENDANTS: ----------------------------------------- 1. T.P. PADMINI, W/O. MUKUNDAN, PADMA, NEAR N.S. TALKIES, KANNUR -1. (DIED) 2. T.P. CHITHRAN, SON OF GOPI, THAIKANDY HOUSE, NEAR SANGEETHA TALKIES, KANNUR-1. (DISMISSED) APPEAL IS DISMISED AS AGAINST r2 FOR NON-PROSECUTION VIDE ORDER DT.1.10.07 IN APPEAL. 3. SUMANA CHANDRAN, W/O. LATE T.P. CHANDRAN, NARIYAMBALLY HOUSE, TALAPI WEST, KANNUR-1. 4. RAJESH CHANDRAN, SON OF CHANDRAN, DO. DO. 5. AJAY CHANDRAN, DO DO, 6. ROSHNA CHANDRAN, D/O. DO. DO. 7. T.P. PRASANNA, W/O. BHARATHAN THAIKANDY HOUSE, NEAR SANGEETHA TALKIES, KANNUR-1. 8. O.P.BHAGEERATHIM W/O. VALSAN, SREEVATSAN, NEAR PALAPEEDIKA, P.O. PAPPINISSERI, KANNUR TALUK AND DISTRICT. 9. O.P. NADARAJAN, S/O. SARADA, SARADALAYAM MOOPANPARA, P.O. VALAPATTANAM, KANNUR DIST. 10. SUDHA KRISHNA, W/O. GOPINATH, KALARIYIL HOUSE, CHILAPPURAM, KOZHIKODE. 11. SUDHEER KRISHNAN, SON OF BHARGAVI CHILAPPURAM, KOZHIKODE. ADDL. R12. RAJANA, AGED 52 YEARS, D/O. LATE PADMINI, 'PADMA', VALIYAVALAPPILKAVU, KANNUR. (IMPLEADED AS LEGAL REPRESENTATIVE OF DECEASED FIRST RESPONDENT AS PER ORDER DT.15.10.08 ON I.A.3608/2008. 13. P. ABDUL GAFOOR, SHAMSHAD VILLA, P.O. PATTLA, KASARGOD DIST. 14. SAJITHA, W/O. ABDUL GAFOOR, DO. DO. (R13 & 14 IMPLEADED AS PER ORDER DT.17.6.2009 ON I.A. 1912/2009). BY ADV. SRI. T.A.RAMADASAN SRI.A.MOHAMED MUSTAQUE FOR R8,9 SRI.SHEJI P.ABRAHAM FOR R8,9 SRI.P.SATHISAN FOR ADDL.R13 & 14 SRI.R.SURENDRAN FOR R 3 & 7 THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 08/07/2009, THE COURT ON 15.07.2009 DELIVERED THE FOLLOWING: M.L. JOSEPH FRANCIS, J. - - - - - - - - - - - - - - - - - - - - - - A.S.No. 710 of 1997 - - - - - - - - - - - - - - - - - - - - - - Dated this the ...th day of July, 2009 JUDGMENT This appeal is filed by plaintiffs 1 and 2 in O.S.No. 231 of 1993 on the file of the Sub Court, Tellicherry. The appellants/plaintiffs filed the suit for a declaration that the plaint schedule property belongs to the plaintiffs exclusively on the strength of a Will dated 25.11.86 executed by late Gouri and for consequential injunction restraining the defendants from taking any portion of the property from the possession of the plaintiffs by the final decree proceedings in O.S.68 of 89 of Sub Court Thalassery and for other reliefs. 2. The plaintiffs averred that the plaint schedule property originally belonged to one Lakshmi and her children Sumitha, Sarada, Gouri, Bharathi and Jayapalan. As per partition deed No. 1727/20, the properties were partitioned between them and plaint schedule property was got by late Gouri as item No.5 in A.S.No. 710 of 1997 2 the said deed. The said Gouri died on 2.1.1987. Her mother and husband pre-deceased her and she had no children. Therefore, her sisters and the only brother Jayapalan were the legal heirs of deceased Gouri. The plaintiffs are the wife and child of Jayapalan, the only brother of the said Gouri. Jayapalan died in 1986 and the plaintiffs are his legal heirs. The defendants herein are the sisters and children of deceased sisters of the said Gouri. 3. Although deceased Gouri had executed a Will dated 25.11.86 bequeathing the plaint schedule property in favour of the plaintiffs, who were residing along with deceased Gouri. After the death of her husband, Gouri came down to her native place at Kannur and constructed a house in the plaint schedule property and settled down there. She was residing along with her brother, deceased Jayapalan, and the plaintiffs, his wife and child, even after the death of Jayapalan. Deceased Gouri persuaded them to stay with her and they continued to stay in A.S.No. 710 of 1997 3 the said house and they were looking after deceased Gouri with utmost affection and care. Until the death of said Gouri, she was in a sound and disposing state of mind and she was competent to execute the will. She died on account of heart attack. However the plaintiffs did not know of the execution of the Will. 4. A suit for partition of the plaint schedule property was filed by Sarada and Bharathy, who are sisters of deceased Gouri, claiming partition and separate allotment of their share. The plaintiffs were also made parties in the said suit as they were also legal representatives of deceased Gouri. Since the plaintiffs were not aware of the will, they could not put forward any claim as per the Will. They only claimed a share in the property as legal representatives of deceased Gouri. Subsequently a preliminary decree was passed in O.S. No.68/89. As per the preliminary decree, the plaintiffs were held to be entitled to 25/192 shares. A.S.No. 710 of 1997 4 5. However, the plaintiffs came to know of the Will only on 19.2.1993. There was a steel shelf in the house with a locker inside. The sarees of Gouri were kept in the locker in that shelf. While the plaintiffs were cleaning the shelf, the sarees of the deceased were taken out and from among the sarees in the locker, the Will left by Gouri was got. Although the Will is not registered, it is properly attested by two attesting witnesses. The plaintiffs enquired with the attesting witnesses and they also testified to the execution of the Will by deceased Gouri. The deceased Gouri was very affectionate towards the plaintiff, since they are the wife and child of her only brother, who stayed with her and looked after her. 6. As per the Will, the entire plaint schedule property is bequeathed in favour of the plaintiffs. The defendants, who are sisters and children of the deceased, have absolutely no right to the property. Since the plaintiffs were not aware of the Will, the plaintiffs could not produce the Will for claiming exclusive A.S.No. 710 of 1997 5 right on the basis of the Will. It is accordingly that the plaintiffs filed the suit for a declaration that the plaint schedule property belonged exclusively to them on the basis of the Will and they also prayed for injunction. 7. In the Sub Court PWs. 1 to 3 and DW1 were examined. Exts.A1 to A5, B1 to B3 and X1 and X2 were marked. The learned Sub Judge, on considering the evidence, found that the plaintiffs failed to prove the genuineness of Ext.A5 Will and the suit was dismissed with compensatory cost of Rs.2,000/- Against that judgment and decree the plaintiffs filed this appeal. 8. Heard the learned counsel for the appellants and the learned counsel for the respondents. 9. The learned counsel for the appellants submitted that the learned Sub Judge ought to have found that the evidence of the second plaintiff and also the attesting witnesses to the Will clearly prove the execution of the Will by deceased Gouri. A.S.No. 710 of 1997 6 Whereas, the learned counsel for the respondents submitted that the learned Sub Judge is perfectly justified in finding that Ext.A5 Will is not genuine. 10. The main dispute is with regard to the genuineness of Ext.A5 unregistered Will dated 25.11.196 alleged to have been executed by deceased Gouri in respect of the plaint schedule property in favour of the plaintiffs. There is no dispute that the plaint schedule property was allotted to the share of Gouri as Item No.5 as per Partition Deed No.1727 of 1970 executed by Gouri and others. Jayapalan is the brother of deceased Gouri. The first plaintiff is the wife and second plaintiff is the son of Jayapalan. Jayapalan died in 1986 and Gouri died on 2.1.1987 due to heart attack. 11. Ext.B1 is the letter dt.13.2.1974 sent by deceased Gouri to Central Bank of India, Kannur branch. Ext.B1 contains the admitted signature of Gouri. Ext.B2 is the cheque dt.17.11.1986 drawn by deceased Gouri in favour of C.M. A.S.No. 710 of 1997 7 Bharathan. It also contained the admitted signature of Gouri. Ext.B3 is another cheque dt.8.12.1986 issued by deceased Gouri, which also contained the admitted signature of Gouri. Ext.A5 Will and Exts.B1 and B3 were fowarded to the handwriting expert for opinion. The relevant portion regarding the expert opinion is contained in the judgment of the learned Sub Judge, which reads as follows: “In order to substantiate the case of the plaintiffs Ext.A1 partition deed dated 16-11-70 is produced. The name of Gouri is also seen in Ext.A1 document. This Ext.A2 was produced by the plaintiffs in order to substantiate their case that there was a partition as alleged in the plaint. Ext.A1(a) is the last page of Ext.A1 which was subsequently produced and marked as Ext.A1(a). It is a portion of the schedule attached to Ext.A1. Ext.A2 is the certified copy of decree on the file of this court in O.S. 68/89 dated 12-8-91. It is a preliminary decree for partition. This Ext.A2 A.S.No. 710 of 1997 8 indicates that there was partition suit pending before this court. A preliminary decree was passes as alleged in the plaint. Further, the proceedings are initiated for passing a final decree. Ext.A3 is the income tax clearance certificate produced by the plaintiffs in order to indicate that Gouri was an income tax prayer. Ext.A4 is a copy of letter alleged to have issued by deceased Gouri addressed to the Commissioner, Kannur Municipality. This Ext.A4 is a request to the Commissioner not to increase the tax in respect of the property. Ext.A5 is the alleged Will produced by the plaintiffs in order to show that the entire property covered by Ext.A5 were bequeathed in favour of the plaintiffs. It is an unregistered Will dated 25-11-86 alleged to have executed by late Gouri with attestation of two attesting witnesses. This Ext.A5 is seriously disputed by the defendants on the ground that it is a concocted and forged document. They dispute its genuineness. So, this Ext.A5 was sent for opinion of the expert. That Expert opinion was received and marked as Ext.X1. It is dated 27-12-95 wherein the expert A.S.No. 710 of 1997 9 stated the documents in this case have been carefully and thoroughly examined. The person who wrote the red enclosed signatures stamped and marked A1 to A5 did not write the red enclosed signature similarly stamped and marked Q1 to Q2. The admitted signatures of the deceased Gouri were sent to the expert for his opinion. So, this Ext.X1 report indicates that the alleged Will Ext.A5 does not bear the signature of deceased Gouri as contended by the plaintiff. Ext.X2 is an opinion of the Expert which was called for at the request of the defence counsel. The defence counsel filed a petition to serve interrogatories on the Expert so as to enlighten to process by which the conclusions were reached by the Expert. In that answer to the interrogatories, the Expert submitted that he carefully and throughly examined the original documents of the case in all aspects of handwriting, identification and detection of forgery with the scientific aids available in the Govt. of India Laboratory at Hyderabad. According to him the person who wrote the red enclosed signature stamped and marked A1 to A5 A.S.No. 710 of 1997 10 did not write the red enclosed signatures similarly stamped and marked Q1 and Q2, based on the following considerations: Inter-se comparison of the standard signature marked A1 to A5 reveals that these signatures are written with freedom and speed consistent with the Skill of the writer, show uniform and smooth line quality, carelessness and abandon. These features being accompaniment of natural writing indicate an automatic and almost unconscious act on the part of the writer. On the other hand, the disputed signatures marked Q1 and Q2 show consciousness on the part of the writer as indicated by hesitation at places, defective line quality, drawn and laboured in their execution which are inherent signs of imitation. The disputed signatures Q1 and Q2 strictly adhere to a fixed model and show less variation among themselves when compared with standard signature A1 to A5. The disputed signatures Q1 and Q2 almost tally on super- imposition indicating that these signatures have been produced by imitation. A.S.No. 710 of 1997 11 In addition, they also show fundamental divergences in individual writing habits. Manner of execution of letter “N” with rotundity of its shoulder as observed vide A5 is found different in disputed signatures Q1 and Q2 - the letter “N” is written resulting angularity at its apex in the disputes signatures; location and direction of finish in execution of letter “O” is different vide Q1, Q2 and A1 to A5; manner of execution of letter “U” with angularity of loops as observed in standard signatures A1 to A5 is found different in disputed signatures Q1 and Q2, shape of curved part of “P” is also found different vide Q1, Q2 and A5. The collective consideration of the presence of various inherent signs of imitation in the questioned signatures and the characteristic differences in the individual writing habits between the questioned and standard signatures are significant and sufficient and are not due to natural variation or intended disguise but due to their different authorship". A.S.No. 710 of 1997 12 12. The second plaintiff, who was examined as PW1, has no direct knowledge with regard to the execution of Ext.A5 Will. PW2 is alleged to have been an attesting witness to Ext.A5 Will. PW2 deposed that the contents of Ext.A5 Will was read over by the Scribe in the presence of Gouri and the attesting witnesses. PW2 deposed that he signed Ext.A5 Will first and thereafter the second attesting witness signed it. He further deposed that Gouri and the second attesting witness saw him signing Ext.A5 and he saw Gouri and the second attesting witness signing Ext.A5. PW2 deposed that Gouri died two months after the execution of Ext.A5 Will due to heart attack. In Ext.A5 the name of the Scribe, who prepared that document, is not mentioned. In cross examination PW2 admitted that he did not say anything about the Will even to the plaintiffs after the death of Gouri till 1993. 13. PW3 deposed that he saw Gouri signing Ext.A5 Will. He also deposed that he did not reveal about the execution of A.S.No. 710 of 1997 13 the Will till 1993. The version of Pws. 2 and 3 that they did not disclose anything about the Will to the plaintiffs or to anybody else even after the death of Gouri appears to be not probable if Ext.A5 Will was actually executed by Gouri. 14. On appreciating the testimony of Pws. 1 to 3 in the light of the expert opinion, I am of the view that the learned Sub Judge is perfectly justified in finding that Ext.A5 is not a genuine Will executed by Gouri. Considering the facts and circumstances of the case, I find no reason to interfere with the judgment and decree of the lower court. Therefore, this appeal is liable to be dismissed, as it is without any merit. 15. Accordingly this appeal is dismissed. The judgment and decree dismissing O.S.No. 231 of 1993 on the file of the Sub Court, Tellicherry are confirmed. The parties are directed to suffer their respective cost in this appeal. (M.L. JOSEPH FRANCIS) tm Judge A.S.No. 710 of 1997 14