IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 14TH OCTOBER 2011 / 22ND ASWINA 1933 RSA.No. 1160 of 2011() ---------------------- AS.152/2010 of DISTRICT COURT, KOTTAYAM OS.75/2009 of MUNSIFF COURT, ETTUMANOOR .................... APPELLANTS/APPELLANTS/PLAINTIFFS: -------------------- 1. JOSEPH, AGED 52 YEARS, S/O. OUSEPH, KUDILIL VEETIL, KADAPPOOR KARA, KANAKKARY VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT -686 596. 2. JACOB, AGED 47 YEARS, S/O. OUSEPH, KUDILIL VEETIL, KADAPPOOR KARA, KANAKKARY VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT -686 596. BY ADV. SRI.KURIAN CHEMBOLA MATHAI SMT.AYSHA RAHMAN RESPONDENT(S)/RESPONDENTS/DEFENDANTS: --------------- 1. ULHANNAN, AGED 50 YEARS, S/O. OUSEPH, KUDILIL VEETIL, KADAPPOOR KARA, KANAKKARY VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT -686 596. 2. ANNAMA, AGED 54 YEARS, D/O. OUSEPH, MATTAKOTTIL VEETIL, PALAKARA, ARUNASSERY, KADUTHURUTHY P.O., VAIKOM TALUK, KOTTAYAM - 686 604. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 14/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. .............................................. R.S.A.NO.1160 OF 2011 ............................................. Dated this the 14th day of October, 2011. JUDGMENT Plaintiffs in O.S.No.75/2009 on the file of the Munsiff Court, Ettumanoor are the appellants. Defendants are the respondents. The suit was filed for partition. An additional relief was sought for after the first respondent filed his written statement to set aside Ext.B2 Will. The plaint property sought to be partitioned admittedly originally belonged to Ouseph, the father. Appellants and first respondent are his sons and second respondent is his daughter. Ouseph admittedly died on 14.1.2009. According to the appellants, he died interstate and therefore his rights devolved on the appellants and the respondents, as his legal heirs and they are entitled to get their share separated. After the first respondent filed the written statement, plaint was amended inserting a plea that Ouseph - the father out of his free will and volition did not execute or register Ext.B2 Will and it is fraudulently created by the first respondent. It was contended that the first respondent collusively created Ext.B2 and Ouseph R.S.A.NO.1160 OF 2011 : 2 : was not having sound disposing state of mind at the time of the alleged execution of the Will. Therefore, Ext.B2 will is void and is to be set aside. The first respondent resisted the suit contending that father did not die interstate as alleged and instead he executed Ext.B2 registered Will dated 28.12.2000 and under the Will, properties were bequeathed to the first respondent and the Will has taken effect on the death of Ouseph and he is the absolute owner of the property and plaint property is not available for partition. He also filed an additional statement contending that Ouseph was having sound disposing state of mind at the time of execution of the Will and executed the Will voluntarily and it is valid and binding and appellants are not entitled to claim any share. Second respondent, the sister also filed a written statement claiming separation of her share. 2. The learned Munsiff on the evidence of Pws 1 to 4, Dws 1 to 5, Exts.A1 to A5, B1 to B4 and C1 found that Ext.B2 is a Will executed by deceased Ouseph and its execution was proved and it is not vitiated by fraud or R.S.A.NO.1160 OF 2011 : 3 : misrepresentation as alleged by the appellants and as Ouseph executed Ext.B2 Will, plaint property is not available for partition. The suit was dismissed. Appellants filed A.S.No.152/2010 before the District Court, Kottayam challenging the decree. The learned District Judge on re- appreciation of the evidence confirming the finding of the learned Munsiff, dismissed the appeal. It is challenged in the second appeal. 3. Learned counsel appearing for the appellants was heard. The argument of the learned counsel is that the courts below did not properly appreciate the evidence, in the light of the settled legal position. It was pointed out that when execution of Ext.B2 Will was disputed and it is alleged that the Will was fraudulently created by the first respondent, burden is on the first respondent-the propounder to prove that Ext.B2 is genuine Will executed by deceased Ouseph and to remove all suspicious surrounding its execution. The argument is that the propounder must not only prove the execution, but shall remove all the suspicious surrounding execution of the Will, as alleged by the R.S.A.NO.1160 OF 2011 : 4 : appellants and borne out by the evidence. Learned counsel would argue that though Ext.B2 is the registered Will fact that it was registered by itself will not absolve the liability of the first respondent to prove its execution and the execution has to be independently proved. Learned counsel pointed out that the two attesting witnesses shown in Ext.B2 are PW4 and DW3 and PW4 deposed before court that he did not see the testator executing Ext.B2 Will and he did not sign in Ext.B2 as an attesting witness. Learned counsel therefore argued that there is no evidence to prove that testator had executed Ext.B2 Will in the presence of two witnesses as mandated under Section 63 (c) of the Indian Succession Act. Learned counsel also would argue that the evidence of PW2, one of the identifying witnesses who identified the testator before the Sub Registrar, establishes that he did not identify the testator as shown in Ext.B2 and in such circumstances, courts below were not justified in upholding the Will. The learned counsel also argued that PW3, who is a scribe having his office near the plaint schedule property belonging to the R.S.A.NO.1160 OF 2011 : 5 : first respondent, deposed that scribe seen in Ext.B2 was not there in the office at the time when the document was allegedly prepared or executed and in such circumstance when the burden is heavily on the first respondent, the courts below were not justified in upholding the Will. Learned counsel argued that DW2 the other attesting witness though deposed in favour of the first respondent, his evidence should not have been relied on as he stated that execution was 50 years back and not on 28.12.2000, the date of execution seen in Ext.B2. Learned counsel also argued that DW4 - the Sub Registrar is a relative of the wife of the first respondent and when the entire evidence is appreciated especially when the document executed on 28.12.2000 was registered only on 31.1.2011 and the delay was not explained and in such circumstances it can only to be found that the Will was not genuine and hence the plaint properties are available for partition. 4. The judgment of the learned Munsiff shows that the entire evidence was appreciated in detail in the proper perspective. Learned Munsiff on appreciation of the R.S.A.NO.1160 OF 2011 : 6 : evidence, entered a factual finding that the evidence of PW4 examined by the appellants to prove that he did not attest Ext.B2 Will and did not see the testator executing the Will cannot be believed and the evidence of DW2 the other attesting witness establishes that the testator executed the Will in his presence and in the presence of the other attesting witnesses. Learned Munsiff also found that though it was contended that Ouseph had no sound disposing state of mind on the date of execution of the Will, along with the second appellant Ouseph had executed a sale deed and the second appellant was not examined and evidence establishes that testator was having sound disposing state of mind on the date of execution of Ext.B2 Will. Learned Munsiff therefore upheld Ext.B2 Will and dismissed the suit. Learned District Judge on re- appreciation of the entire evidence agreed with the appreciation of evidence by the trial court. Learned District Judge relying on Ext.B1 partition deed executed jointly by the appellants, first respondent and deceased Ouseph in 2002, held that case of the appellants that Ouseph was not R.S.A.NO.1160 OF 2011 : 7 : having a sound disposing state of mind in 2002 cannot be believed and Ext.B1 assignment deed admittedly executed by Ouseph with the second appellant in 2007 further strengthens the finding of the learned Munsiff that Ouseph was having sound disposing state of mind, when Ext.B2 was executed. Learned District Judge also appreciated the evidence of the witnesses examined by the appellants as well as the first respondent and found that evidence of Pws 2 to 4 cannot be relied on and the evidence of DW2 the attesting witness establishes that the testator who was having sound disposing state of mind executed the Will in his presence and in the presence of the other attesting witness and the Will was later registered in the Sub Registrar's Office, in the presence of DW4 - the Sub Registrar and held that in view of the Will executed by Ouseph whereunder the properties were bequeathed to the first respondent, plaint properties cannot be divided as sought for. Learned District Judge also found that fact that other sharers, the legal heirs, were disinherited by the testator by itself is not sufficient to discard the Will especially when R.S.A.NO.1160 OF 2011 : 8 : the reason for disinheritance was properly explained by the first respondent and in such circumstances, the appeal was dismissed. The question whether evidence of DW2 - the attesting witness and DW3 - the scribe who prepared Ext.B2 Will establish that Ext.B2 was prepared by DW3 as inserted by the deceased testator and the testator in the presence of Dws 2 and 3, the other attesting witnesses executed the Will and at that time the other attesting witness PW4 was present are facts concurrently found by the courts below. It was also concurrently found that evidence of PW2 and PW4 who were examined to prove the negative fact cannot be relied on. Learned counsel though minutely taken me through the evidence and argued that appreciation of the evidence was not proper, I cannot agree with the submission in the light of appreciation of evidence by the courts below in the light of the evidence on record. When the view taken by the courts below is definitely a plausible and reasonable view, it cannot be interfered in exercise of the powers under Section 100 of the Code of Civil Procedure. In R.S.A.NO.1160 OF 2011 : 9 : such circumstances, the appeal is dismissed as no substantial question of law, on the facts and evidence, is involved in the appeal. Sd/- M. SASIDHARAN NAMBIAR, JUDGE. cl