IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 11TH AUGUST 2010 / 20TH SRAVANA 1932 RSA.No. 720 of 2010(B) --------------------------------- [AS.NO.83/2006 OF PRINCIPAL SUB COURT,PARAVUR, OS.NO.482/2001 OF MUNSIFF'S COURT, PARAVUR] .................... APPELLANT/APPELLANT/3RD PLAINTIFF: ------------------------------------------------------------ K.S.UNNI, S/O.K.K.SUKUMARAN, KANAKKATTUSSERY, AL-AMEEN ROAD, EDAPPALLY, KOCHI-24. BY ADV. SRI.BECHU KURIAN THOMAS. RESPONDENTS/RESPONDENTS/DEFENDANTS & PLAINTIFFS 4 TO 17: ----------------------------------------------------------------------------------------------------- 1. K.L.RATHAN, S/O.LAKSHMANAN, KANAKKATTUSSERY, CHERAI MURI. 2. MURUGAN, S/O.LAKSHMANAN, KANAKKATTUSSERY, CHERAI MURI. 3. K.S.VIJAYALAKSHMI, W/O.P.B.SANTHANU, PUTUPARAMBIL HOUSE, EROOR, VASUDEVA ROAD, NORTH JANATHA, PALARIVATTAM, KOCHI. 4. K.S.KASIVISWANATHAN, KANAKKATTUSSERY HOUSE, 34/2086, YESORAM COLONY, MAMANGALAM, KOCHI-682 025. 5. K.P.PADMAJA, D/O.K.P.PADMANABHAN, KANAKKATTUSSERY, NEAR H.M.C.JUNCTION, CHERANALLUR ROAD, CHITTOOR. 6. DEVIMOHAN, D/O.K.K.PADMANABHAN, L.I.G.231, GANDHINAGAR, KOCHI. 7. K.P.LATHA, D/O.K.K.PADMANABHAN, SLIM-N-SYLE BEAUTY PARLOUR, VINAYAKA BUILDING, GANDHIPURAM, COIMBATHUR. R.S.A. NO.720/2010-B: 8. K.P.SEETHAL DAS, S/O.K.K.PADMANABHAN, `ARCHANA', PALARIVATTOM, KOCHI. 9. K.P.HEMANTH, S/O.K.K.PADMANABHAN, KUNNUKAL, EDAPPILLY, KOCHI. 10. K.P.MEENA, D/O.K.K.PADMANABHAN, KHADI & VILLAGE INDUSTRIES, NADATHARA P.O., THRISSUR. 11. K.P.RAJI, D/O.K.K.PADMANABHAN, C/O.K.P.PADMAJA, KANAKKATTUSSERY, NEAR H.M.C.JUNCTION, CHERANELLUR ROAD, CHITTOOR. 12. K.P.NIMMY, D/O.K.K.PADMANABHAN, C/O.DEVI MOHA, L.I.G.231, GANDHINAGAR, KOCHI. 13. MEERA BALAN, D/O.PADMANABHAN, KADATHUPARAMBIL, BEACH WARD, ALLEPPEY. 14. MANI N.RAJAN, D/O.K.K.PADMANABHAN W/O.N.NADARAJAN (ASST.DIRECTOR RETD.) KDHADI &S VILLAGE INDUSTRY, SANTHI VILLA, NEMAM P.O., THIRUVANANTHAPURAM. 15. RAJASWARI, D/O.RUGMINI, PUTHENPURAYIL HOUSE, PAZHAYANGADI, PURAKKAD, AMBALAPUZHA. 16. HEERA, D/O.RUGMINI, PUTHENPURAYIL HOUSE, PAZHAYANGADI, PURAKKAD, AMBALAPUZHA. BY THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 11/08/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. P.BHAVADASAN, J. ------------------------- R.S.A No.720 of 2010 -------------------------- Dated this the 11th August, 2010 J U D G M E N T Aggrieved by the concurrent findings against the dismissal of the suit, the 3rd plaintiff in O.S No.482/2001 before the Munsiff Court, North Paravur has come up in appeal. The parties and facts hereinafter referred to as are available before the trial court. 2. The suit was one for injunction. One Vava was said to be the uncle of both plaintiffs and defendant. Late Vava obtained plaint schedule property as per partition deed namely Ext.A1 dated 7.10.1119 M.E. It is pointed out that then before his death plaintiffs were in possession of the property. Vava died as a bachelor and it is alleged that he was a mentally unsound person. Plaintiffs claimed that it was taking note of the fact that Vava was mentally unsound, that clause was incorporated in the partition deed restraining the alienation with respect to Vava's properties set apart to him. It is claimed that after the death of Vava the properties devolved absolutely to the plaintiffs. When the 3rd plaintiff went to plaint schedule R.S.A No.720 of 2010 2 properties on 14.7.2001, the defendant threatened him. The defendant has no right to do so. Hence the suit. 2. Defendant resisted the suit. It is admitted that the plaint schedule properties were owned and possessed by Vava by virtue of Ext.B1 partition deed. He denied that Vava was of unsound mind. It is contended that after the death of Vava, 3rd plaintiff had demanded Rs.1,00,000/- as a share of the properties owned and possessed by Vava. It is claimed that plaintiff was informed of about the will executed by Vava and property has been bequeathed to defendants. Therefore he prayed for dismissal of the suit. 3. The trial court raised necessary issues for consideration. The evidence consists of the testimony of PW1 and PW2 and Ext. A1 marked from the side of the plaintiffs. Defendant had examined DWs 1 to DW4 and Exts. B1 to B8 were marked. Exts. C1 and C1 (a) are the commission report and plan. 4. On evaluation of the evidence in the case, the trial court found that there was no evidence to show that Vava was of unsound mind and that he was in possession of R.S.A No.720 of 2010 3 the plaint schedule properties. As per the will executed by Vava, the properties devolved on the defendants. Under those circumstances, the trial court dismissed the suit. 5. The matter was carried in appeal as A.S. 83/06 before the Sub Court, North Paravur by the 3rd plaintiff. The lower appellate court reconsidered the evidence on record and had come to the same conclusion as that of the trial court and dismissed the appeal. Against the concurrent findings of the courts below, this appeal has been preferred before this Court. 6. Learned counsel appearing for the appellant pointed out that Vava was of unsound mind and so will cannot be given effect to and can have no legal validity. If that be so, the claim made by the defendant cannot be sustained. 7. Except for the bold allegation in the plaint to the effect that Vava was mentally ill, there is absolutely no evidence adduced by the plaintiff to establish the said fact. Vava died on 7.6.2001. There is nothing to show that Vava did not have sound mind at the time of execution of will. R.S.A No.720 of 2010 4 Reliance placed on the recital that in case the property allotted to Vava is to be assigned, the father of Vava too will have executed the document does not by itself lead to the conclusion that Vava was mentally ill. 8. There is no presumption that person is mentally ill. The presumption is to the contra. It is for person who alleges that another person is mentally ill to establish that fact. In the absence of any evidence to show that Vava was mentally ill, the only conclusion possible is that he had executed the will knowing fully well the disposition made by him. According to the courts below, going by the evidence on record, it would appear that legatee acted upon the will and is in possession of the property left behind Vava. It is to be noticed that the plaintiffs were fully aware of the will said to have been executed by Vava and it was concealing that fact , they had approached the court. 9. The courts below accepted the contentions of the defendant based on the will. There is nothing to show that the findings are either perverse or unwarranted by the R.S.A No.720 of 2010 5 evidence on record. The result is that there is no substantial questions of law arise for consideration in this appeal and is devoid of merits. It is accordingly dismissed in limine. P.BHAVADASAN, JUDGE ma