IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 6TH NOVEMBER 2008 / 15TH KARTHIKA 1930 MFA.No. 734 of 2001() --------------------- OS.10/1998 of I ADDL.DISTRICT COURT, THRISSUR .................... APPELLANT(S)/DEFENDANT: -------------- ITTIACHAN, S/O.NADAKKAVUKKARAN THOMA, CHEMBUKKAVU DESOM AND VILLAGE, THRISUR TALUK.(DIED) ADDL.2ND APPELLANT: JOSE JOSEPH, S/O. NADAKKAVUKKARAN ITTIACHAN, CHEMBUKKAVU DESOM AND VILLAGE, THRISUR. (ADDITIONAL 2ND APPELLANT IS IMPLEADED AS THE LEGAL REPRESENTATIVE OF DECEASED SOLE APPELLANT AS PER ORDER DATED 28.3.2005 IN I.A. NO. 846 OF 2005) BY ADV. SRI.K.G.BALASUBRAMANIAN RESPONDENT(S)/PLAINTIFFS: --------------- 1.PAULSON, S/O. NADAKKAVUKKARAN THOMA, RESIDING AT KIZHAKKEKOTTAVATHUKKEL, CHEMBUKKAVU VILLAGE, THRISUR TALUK. 2.VALSA, W/O. 1ST RESPONDENT, PAULSON, -D0- -DO- 3.GRACY, D/O. NADAKKAVUKKARAN THOMA, -DO- -DO- 4.LISSY, D/O. NADAKKAVUKKARAN THOMA, -DO- -DO- 5.KOCHANNAM, D/O. NADAKKAVUKKARAN THOMA, -DO- -DO- 6.JOSEPH, S/O. ARAKKEL PAILY, CHITTILAPPILLY VILLAG & DESOM. 7.BEENA, D/O. 6TH RESPONDENT JOSEPH AND ROSY, -DO- -DO- 8.FEBY, D/O. 6TH RESPONDENT JOSEPH AND ROSY, -DO- -DO- 9.PHILO, D/O. 6TH RESPONDENT JOSEPH AND ROSY, -DO- -DO- 10.JAPAUL, S/O. 6TH RESPONDENT JOSEPH AND ROSY, -DO- -DO- ADDITIONAL R.11 IMPLEADED 11.BHARATHA KSHEMAM DUCATIONAL TRUST, THRISUR VILLAGE, TALUK AND P.O., THRISUR DISTRICT, REPRESENTRED BY ITS MANAGING TRUSTEE (ADDITIONAL R.11 IS IMPLEADED VIDE ORDER DATED 24.2.2003 ON C.M.P. NO. 7187/2002) ADVS. SRI.S.V.BALAKRISHNA IYER (SR.) FOR R1 TO R6 AND R8 SRI.P.B.KRISHNAN FOR R4 SRI.K.PADMANABHAN FOR R11 SRI.M.V.MATHEW FOR R11 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 29.9.2008, THE COURT ON 06/11/2008, DELIVERED THE FOLLOWING: ORDER IN C.M.P. NO. 1410 OF 2003 IN M.F.A. NO. 734 OF 2001. DISMISSED 6.11.2008 Sd/-(C.N.RAMACHANDRAN NAIR, JUDGE) Sd/-(HARUN-UL-RASHID, JUDGE) C.N. RAMACHANDRAN NAIR & HARUN-UL-RASHID, JJ. --------------------------------------------------------- M.F.A. NO. 734 OF 2001 --------------------------------------------------------- Dated this the 6th day of November, 2008 JUDGMENT Harun-Ul-Rashid, J. Appellant is the sole defendant in O.S. No.10 of 1998 (LA O.P. No.73 of 1997) on the file of the 1st Additional District Court, Thrissur. The suit filed by the respondents/plaintiffs for grant of letters of administration for Ext.A1 Will was decreed by the court below and letters of administration were issued in favour of plaintiffs 1 and 2 empowering them to administer the estate of late Thoma. Aggrieved by the impugned judgment dated 13.12.2000, the defendant has come up in appeal. The parties herein are refereed to as plaintiffs and defendant as in the suit. 2. The first plaintiff and the sole defendant are the sons of late Thoma. Plaintiffs 3, 4 and late Rosy are his daughters. Plaintiffs 6 to 10 are the legal heirs of late Rosy. The 5th plaintiff is the sister of late Thoma. Admittedly, the plaint schedule property belonged to late Thoma who died on 4.7.1985. His wife died on 2.1.1994. The said Thoma had M.F.A. NO. 734/2001 2 executed Ext.A1 Will dated 27.7.1984 and registered the same as Document No.143/84. It has come out in evidence that Ext.A1 is the last Will and testament of late Thoma. According to the plaintiffs, late Thoma executed Ext.A1 Will on his own free will and in a sound disposing state of mind and prayed for grant of letters of administration in favour of plaintiffs 1 and 2 who are the legatees under the said Will. 3. The defendant denied execution of the Will and contended that Ext.A1was created fraudulently and deceitfully and that late Thomas was not in a sound and disposing state of mind at the time when the alleged Will was said to be executed. On the side of the plaintiffs, PWs.1 to 5 were examined and Exts.A1 and A2 were marked. The defendant was examined as DW.1 and Ext.B1 was marked on his side. The court below examined whether Ext.A1 Will registered as Document No.143/84 was the last Will and testament of late Thoma and whether the said Will was executed by late Thoma in a sound disposing state of mind. 4. The first plaintiff who was examined as PW.1 identified the signature and thumb impression of late Thoma in Ext.A1 Will. He gave evidence to the effect that late Thoma was in a sound state of mind till his death and he died due to silent heart attack and was aged 85 at the time of M.F.A. NO. 734/2001 3 his death. PW.1 also testified that the amount directed to be paid as per Ext.A1 Will has been paid by him and receipts have also been obtained from the persons concerned. The attestors to the disputed Will who were examined as PWs.2 and 4 testified that late Thoma signed the Will in their presence and that they also signed the Will as attestors in the presence of late Thoma. PW.2 also deposed that late Thoma was in a sound state of mind at the time to execution of Ext.A1 and that the contents of the Will was read over to late Thoma before he signed the document. PW.3 was the Sub Registrar of Thrissur during the relevant time. Her evidence shows that Ext.A1 was registered by her at the house of the testator and that she had read over the contents of Ext.A1 to the testator who admitted the contents and signed the document. She identified Ext.A1 as the said Will. PW.5, the document writer who is the scribe of Ext.A1 testified that he had prepared Ext.A1 Will and handed over the same to late Thoma. He also deposed that the Will was prepared as per the instructions given by late Thoma. He also spoke about the registration of the Will by PW.3. 5. The defendant who was examined as DW.1 testified that late Thoma was staying with him until about seven years before his death and the first plaintiff had forcibly taken late Thoma from his house. He gave evidence in terms of his written statement. M.F.A. NO. 734/2001 4 6. Due execution and attestation of Ext.A1 Will are proved through the evidence of PW.1 and the same was accepted by the court below. It is no doubt the responsibility of the propounder to prove not only the execution of the Will, but also the suspicious circumstances that might emerge as regards the execution or attestation of the Will. The court below examined in detail the question as to whether there was due execution and attestation of the Will and whether there were any suspicious circumstances surrounding the execution and attestation of the Will which the plaintiffs have not been able to explain. The evidence of PW.1 was thoroughly scrutinized and appreciated by the court below. The court below rightly held that the circumstances pointed out by the learned counsel for the defendant were not sufficient to show that late Thoma was not in a sound disposing state of mind at the time of execution of Ext.A1. PWs.1 to 5 have tendered positive evidence which would go to show that late Thoma was in a sound disposing state of mind at the time of execution of Ext.A1 Will and that he executed the document fully knowing its contents. The Sub Registrar had also endorsed the said fact. The court below also held that the fact of registration of Ext.A1 complying with the provisions of the Registration Act and Rules is certainly a circumstance in favour of the plaintiffs and that the endorsement made by the Sub Registrar M.F.A. NO. 734/2001 5 in Ext.A1 raises presumption that the formalities required for the due registration of Ext.A1 was complied with. 7. The plaintiffs positively proved Ext.A1 as the last Will and testament of late Thoma. The grounds raised in this appeal assailing the findings of the court below have no basis. No grounds are made out by the appellant to take a different view from the one taken by the court below. Int the result, the appeal fails and it is accordingly dismissed. There will be no order as to costs. (C.N. RAMACHANDRAN NAIR) JUDGE (HARUN-UL-RASHID) JUDGE sp/ M.F.A. NO. 734/2001 6 C.N. RAMACHANDRAN NAIR & HAURN-UL-RASHID, JJ. M.F.A. NO. 734/2001 JUDGMENT 6th November, 2008 M.F.A. NO. 734/2001 7