IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 16TH OCTOBER 2008 / 24TH ASWINA 1930 RSA.No. 634 of 2008() --------------------- AS.43/2005 of SUB COURT, PALA OS.378/2000 of MUNSIFF COURT, PALA .................... APPELLANT/PLAINTIFF --------------------------------------- CHANDRAN, AGED 43, S/O.NARAYANAN, RESIDING AT KUMBALATHUKUNNEL, KONDAD KARA, VELLILAPPALLY VILLAGE, RAMAPURAM P.O. BY ADV. SRI.A.K.ALEX SRI.K.P.SURESH KUMAR RESPONDENT(S): DEFENDANTS ------------------------- 1. MOHANAN, AGED 35, S/O.KESAVAN, RESIDING AT CHALIL HOUSE, VELLILAPPALLY KARA, DO. VILLAGE, RAMAPURAM P.O. 2. BINDU, AGED 25, W/O.MOHANAN, DO. HOUSE, DO. KARA, DO. VILLAGE, RAMAPURAM P.O. 3. KESAVAN, AGED 65, S/O.KUNJAN, DO. DO. 4. DAMODARAN, AGED 70, S/O.KUNJAN, KUMBALTHUKUNNEL, KONDAD KARA, VELLILAPPALLY VILLAGE, RAMAPURAM P.O. 5. BINU, AGED 28, S/O.DAMODARAN OF DO. 6. BIJU, AGED 24, S/O.DAMODARAN OF DO. 7. NARAYANAN, AGED 84, S/O.KUNJAN OF DO REPRESENTED BY HIS GUARDIAN SUNIL, S/O.NARAYANAN, NADAYANCHALIL OF DO (DIED). 8. JANAKI, AGED 75, W/O.GOPALAN, KUTTIYILLATHU HOUSE, MEENACHIL KARA, DO. VILLAGE. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 16/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * R.S.A. NO. 634 of 2008 * * * * * * * * * * * * * * * * * * Dated: 16-10-2008 JUDGMENT The plaintiff in O.S. 378 of 2000 on the file of the Munsiff's court, Pala is the appellant in this Second Appeal. The said suit was one for declaration of title and recovery of possession after demolishing the shed and new construction put up in the plaint schedule item No. 2 and also for a perpetual injunction restraining the defendants from trespassing upon the rest of the plaint schedule item No. 1 property which has a total extent of 27 Ares and 60 sq mtrs. The plaintiff claimed exclusive title and possession over the property as per Ext.A4 unregistered will dated 7-3-1965 allegedly executed by his grandfather one Kunjan who is no more. 2. Kunjan the alleged testator had three sons and a daughter. Defendants 3, 4 and 7 are the sons and 10th defendant is his daughter. The first defendant is a son born to the 3rd defendant and the 2nd defendant is his wife. Defendants 5 and 6 are the children of the 4th defendant. Plaintiff is the son of the 7th defendant. As mentioned earlier the title traced by the R.S.A. No. 634 of 2008 -:2:- plaintiff over the plaint schedule property is Ext.A4 unregistered will said to have been executed by Kunjan bequeathing the plaint schedule property to the petitioner/plaintiff. P.W.2 was the witness examined by the petitioner in proof of execution of Ext.A4 will. He claims to be the scribe as well as one of the attesting witnesses. Both the courts below disbelieved him. This witness confessed during cross-examination that he had copied down the will about four or five years ago and Ext.A4 is the copy so prepared by him. If so, even according to him Ext. A4 is not the original will. He also admitted in unambiguous terms that all the writings including the signature of the executant in Ext.A4 were made by him. He further confessed that Kunjan the attestor died about 60 years ago. If so as contended by defendants the plaintiff was not even born on the date of death of his grandfather Kunjan so as to enable Kunjan to give a legacy to the plaintiff. The testimony of P.W.1 the petitioner himself was also not accepted by the courts below. He would say that Ext.A4 will was handed over to him by his mother after the institution of the suit. If so, his mother would have been the best witness to depose about the custody of the document until it was handed over to P.W.1. For reasons best R.S.A. No. 634 of 2008 -:3:- known to the plaintiff, he did not examine his mother even on commission. The other documents produced by the plaintiff such as tax receipt etc. can be of no avail to the plaintiff to contend for the position that he is in exclusive possession and enjoyment of the property. Being a co-owner his possession can only be ascribed to that of the other co-owners as well. The plaintiff thus was held not entitled to claim exclusive right of enjoyment of the property on the strength of Ext.A4 unregistered will the due execution of which by a person having the requisite testamentary capacity has not been proved in this case. The Court below were fully justified in dismissing the suit. No question of law, much less any substantial question of law arises for consideration in this Second Appeal. The questions formulated in the memorandum of Appeal also do not arise for consideration . This Second Appeal is accordingly dismissed in limine. Dated this the 16th day of October 2008. Sd/-V. RAMKUMAR, (JUDGE) /true copy/ R.S.A. No. 634 of 2008 -:4:- ani.