IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 7TH APRIL 2011 / 17TH CHAITHRA 1933 RSA.No. 61 of 2005() ----------------------------- AS.67/2001 OF SUB COURT, PALA OS.65/1999 OF MUNSIFF MAGISTRATE COURT, ERATTUPETTA .................... APPELLANTS/APPELLANTS 2 & 5/DEFENDANTS 2 & 54: -------------------------------------------------------------------------------- 1. K.P.R. NAIR @ RAVENDRAN NAIR, AGED 53 YEARS, S/O.PARAMESWARAN NAIR, RESIDING AT NEW DELHI- 1048, B.X.S. MARG, GOLDAKKANA D-13,AREA, C.R.BUILDINGS FROM PARIYATH HOUSE, MELAMPARA KARA, THALAPPALAM. 2. RADHAKRISHNAN NAIR, AGED 42 YEARS, S/O.PARAMESWARAN NAIR, PARIYATH HOUSE, MELAMPARA KARA, THALAPPALAM. BY ADV. SRI.SEBASTIAN DAVIS RESPONDENTS/RESPONDENTS & APPELLANTS 1, 3 AND 4/ PLAINTIFFS & DEFENDATNS 1, 3 & 4: -------------------------------------------------------------------------------------- 1. NARAYANAN NAIR, AGED 55 YEARS, S/O.PARAMESWARAN NAIR, PARIYATH HOUSE, MELAMPARA KARA, THALAPPALAM VILLAGE. 2. BALAKRISHNAN NAIR, AGED 45 YEARS, S/O.PARAMESWARAN NAIR, PARIYATH HOUSE, MELAMPARA KARA, THALAPPALAM VILLAGE. 3. LAKSHMIKUTTY AMMA, AGED 75 YEARS, W/O.PARAMESWARAN NAIR, PARIYATH HOUSE, MELAMPARA KARA, THALAPPALAM VILLAGE. 4. RAMACHANDRAN NAIR, A GED 50 YEARS, S/O.PARAMESWARAN NAIR, PARIYATH HOUSE, MELAMPARA KARA, THALAPPALAM VILLAGE. 5. SOMASEKHARAN NAIR, AGED 48 YEARS, S/O.PARAMESWARAN NAIR, PARIYATH HOUSE, MELAMPARA KARA, THALAPPALAM VILLAGE. R1 & R2 BY ADV. SRI.P.C.HARIDAS. THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 07/04/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs M.SASIDHARAN NAMBIAR, J ........................................... RSA .NO.61 OF 2005 ............................................ DATED THIS THE 7th DAY OF APRIL, 2011 JUDGMENT Defendants 2 and 5 in O.S.65 of 1995 on the file of Munsiff Court, Erattupetta are the appellants. Respondents 1 and 2 are the plaintiffs and the other respondents, the other defendants. Respondents 1 and 2 instituted the suit seeking partition and separation of their 2/7 shares in the plaint schedule property. Plaint schedule property admittedly originally belonged to Parameswaran Nair. Third respondent (first defendant) is the widow and appellants and the other respondents are their children. If plaint schedule property was left behind by Parameswaran Nair and he died intestate, respondents 1 and 2, appellants and other respondents are definitely entitled to get equal shares. The case of respondents 1 and 2 in the plaint is that Parameswaran Nair had executed a will on 30.1.1990, whereunder he bequeathed the properties to the children, but during his life time he alienated portions of the properties, without disclosing the existence of the will and therefore it is RSA 61/2005 2 clear that the testator never intended to act upon the will and hence on the death of Parameswaran Nair, the will did not come into effect and the plaint schedule property is available for partition. It is contended that subsequent to the death of Parameswaran Nair, the father, first respondent executed Ext.B2 and B3 registered settlement deeds whereunder she had alienated portions of the plaint schedule property in favour of second appellant and 5th respondent (4th defendant) and she has no right to alienate the property and therefore those settlement deeds are not valid and binding on the plaint schedule property or respondents 1 and 2. They sought division of the plaint schedule property and allotment of two shares to them and also a declaration that Exts.B2 and B3 settlement deeds are not valid and binding on them or the plaint schedule property. 2. All the defendants together filed a joint written statement contending that deceased Parameswaran Nair executed Ext.B1 will which was registered in Sub Registrar's office, Erattupetta as Will 8/1990 and under the will, A schedule to F schedule properties were respectively alloted to first plaintiff, second defendant, second plaintiff 5th defendant, 4th defendant RSA 61/2005 3 and third defendant and G schedule property was alloted to the children of second defendant and Ext.B1 will provides that only the property which will be left behind on his death will be available under the will and the widow, first defendant is entitled to be in possession of the properties as absolute owner and therefore under Ext.B1 will, first defendant is entitled to execute Ext.B2 and B3 settlement deeds and thus those settlement deeds are valid and binding on the plaint schedule property and respondents 1 and 2 and the fact that the will was registered shows that the testator wanted the will to be acted upon and in such circumstances, respondents 1 and 2 are not entitled to claim partition as the testator had made provision for division under Ext.B1(a). 3. Learned Munsiff framed two issues viz, (1) is not the plaint schedule property partible, and if so, the share due to the plaintiffs and (2) whether settlement deed 1758/96 and 1759/96 dated 6.6.1996 are not binding and invalid on the plaint schedule property. Before the learned Munsiff, no oral evidence was adduced by the plaintiffs or defendants and Exts.A1 to A8 and Exts.B1 to B3 were marked. Learned Munsiff, on the evidence RSA 61/2005 4 found that execution of Ext.B1 will was not proved as none of the attesting witnesses to Ext.B1 was examined. Learned Munsiff found that under Exts.B2 and B3, first defendant is not competent to alienate the property belonging to Parameswaran Nair, her husband and therefore Ext.B2 and B3 are not binding on the plaint schedule property or respondents 1 and 2 and therfore they are invalid. A preliminary decree was passed directing division of the plaint schedule property into seven shares and allotment of two such shares to respondents 1 and 2. Defendants challenged the judgment before Sub Court, Pala in A.S.67 of 2001. Learned Sub Judge, on reappreciation of evidence confirmed the findings of learned Munsiff and dismissed the appeal. It is challenged in the second appeal. 4. Second appeal was admitted formulating the following substantial question of law. Notice was also issued to respondents. “Whether on the facts and circumstances of the case the courts below were right in taking the view that the will executed by Late Sri Parameswaran Nair was not intended to be RSA 61/2005 5 acted upon on the ground that certain items of properties scheduled to the will were disposed of by him during his life time without mentioning the existence of the will”. xxxxx 5. Third respondent died subsequent to the filing of the second appeal, all her legal heirs are already in the party array. 6. Learned counsel appearing for appellants and respondents 1 and 2 were heard. Learned counsel appearing for appellants pointed out that even in the plaint execution of Ext.B1 will is admitted and respondents 1 and 2 sought partition of the plaint schedule property only on the ground that Ext.B1 will was not intended to be acted upon by the testator Parameswaran Nair and that contention was raised on the ground that testator had alienated portions of the property covered under the will without disclosing the existence of the will and therefore the testator had no intention to act upon Ext.B1 will and did not want the will to come into effect after his death and in such circumstances, when execution of the will is not disputed, courts below erred in holding that as Ext.B1 will is not proved plaint schedule property is available for partition. Learned counsel pointed out that when RSA 61/2005 6 execution of the will is not disputed, and in fact admitted, and the only contention is that the testator had no intention to have the will come into effect and no issue was raised in the suit whether Ext.B1 will was executed by the testator, there was no necessity for examination of the attesting witness to prove the will as an admitted fact need not be proved. It is pointed out that Ext.B1 will itself provides that the testator is competent to alienate the property, which even otherwise he is entitled to, and properties were bequethed in favour of the children, providing that during the life time of the widow, first defendant she is entitled to be in possession of the property as the absolute owner and after her death only, what is left behind alone will be available to be claimed under the will and therefore the fact that testator alienated portions of the property subsequent to the execution of the will or did not mention existence of the will in those documents are not valid ground to hold that the will was not intended to be acted upon as found by courts below. It is therefore argued that the preliminary decree is not sustainable, as on the death of the testator, the properties devolved on the children, including respondents 1 and 2 as provided under Ext.B1 RSA 61/2005 7 and therefore the concurrent decree are to be set aside. 7. Learned counsel appearing for respondents 1 and 2 pointed out that whether execution of the will is admitted or not, if it is to be admitted in evidence, it is to be proved in accordance with law and a will has to be proved as provided under Section 68 of the Indian Evidence Act along with the requirements provided under Section 63 of Indian Succession Act and when none of the attesting witnesses to Ext.B1 will was examined, courts below were justified in holding that as Ext.B1 will is not proved and plaint schedule property is available for partition. Learned counsel also argued that fact that the father alienated the property covered under the will is insufficient to show that he had no intention to act upon Ext.B1 will and in any case, when respondents 1 and 2 specifically contended in the plaint that testator had no intention to act upon Ext.B1 will, burden is on defendants to prove that Ext.B1 will was executed by the testator with an intention not to act upon the will and as no oral evidence was adduced, the decree is sustainable. Learned counsel relied on the decisions of this court in Kamalakshy V. Madhavi Amma (1980 KLT 493), Poulose V. Indira ( 2010(3) KLT RSA 61/2005 8 Suppl. 185) and that of the Apex Court in K.Laxmanan V. Thekkayil Padmini and others (2009(1) SCC 354) and argued that even if execution is admitted, the propounder of the will, who rely on the will, is bound to prove the will as provided under Section 68 of the Indian Evidence Act with the requirement provided under Section 63 of the Indian Succession Act. 8. The plaint schedule property admittedly originally belonged to Parameswaran Nair. Appellants and respondents 1, 2, 4 and 5 are the children of deceased Parameswaran Nair. Deceased third respondent is the widow. If Parameswaran Nair died intestate, definitely respondents 1 and 2 are entitled to get share in the plaint schedule property along with the other respondents and appellants. The question is whether Parameswaran Nair died intestate or not. 9. Paragraph 6 of the plaint itself establish that Parameswaran Nair did not die intestate. The pleading in paragraph 6 is to the effect that including the plaint schedule property, deceased Parameswaran Nair, during his life time, executed the will dated 30.1.1990. The only case is that subsequently, ignoring the will and without mentioning the RSA 61/2005 9 existence of the will, Parameswaran Nair executed Ext.A3, A6 and A9 in respect of the property included in the will and therefore the father had no intention to act upon Ext.B1 will and after the death of Parameswaran Nair, the will did not come into effect. It is therefore clear that even according to respondents 1 and 2, Parameswaran Nair did not die intestate and he had executed Ext.B1 will. Though the plaint does not disclose that the will was registered, Ext.B1 will shows that it was executed in the presence of two attesting witnesses on 30.1.1990 and it was registered before the SRO, Erattupetta on the same day. The very fact that the will was registered, after its execution, shows that it was intended to be acted upon. 10. The argument of the learned counsel, in support of the view taken by courts below, is that even if execution of the will is admitted, the will is to be proved. I cannot agree with the submission. When the plaint itself discloses that Parameswaran Nair had executed the will and the only contention raised is that Ext.B1 will was not intended to be acted upon, it is not necessary to examine the attesting witnesses to prove the execution as found by the courts below. It is more so, when no issue was RSA 61/2005 10 raised by learned Munsiff regarding the execution of the will, evidently, as there is no case that the will was not executed and instead, it is the case of the plaintiffs themselves that Parameswaran Nair had executed the will. In such circumstances, courts below were not justified in ignoring Ext.B1 will on the ground that attesting witnesses were not examined. 11. The only contention raised in the plaint is that Parameswaran Nair had no intention to act upon Ext.B1 will. The reasons are also specifically pleaded. First is that testator alienated portion of the properties covered under the will. It was further contended that in such alienations, testator did not disclose the existence of the will. The question is whether on any of these grounds, it could be found that the testator had no intention to act upon the will. 12. Even if a person executes a will, it will not prevent him from alienating the property covered under the will. If the testator alienates the property covered by the will subsequently, it is not necessary for the testator to show in the documents that the property so alienated is the property covered under the will. This is a basic principle. Ext.B1 shows that inspite of this RSA 61/2005 11 principle, testator has specifically provided that though properties were set apart to the children specifically, they will get only the property that would be left behind by the testator on the date of his death and that too, granting liberty to the widow, first defendant to be in possession of the property as absolute owners and further providing that the legatees would get only those properties which are left behind after the death of the widow. Therefore, while executing Ext.B1 will, the testator was conscious of the fact that he may transfer properties covered under the will. Hence he specifically provided in the will that only those properties which are left behind by him, on his death, could be claimed by the legatees under the will. Added to this, Ext.B1 specifically provides that the legatees would get only the property after the death of first defendant the widow. Ext.B1 further provides that during her life time, first defendant is entitled to be in possession of the property as absolute owner. The further provision that what the legatees could claim, after the death of the first defendant, is only the remaining properties left behind after the death of first defendant establish that the testator specifically provided a right to the first defendant even RSA 61/2005 12 to transfer the properties during her life time. If that be the case, when Ext.B2 and B3 settlement deeds were executed by the first defendant, whereunder the properties covered under those documents were set apart in favour of defendants 2 and 4, it is clear that after the death of Parameswaran Nair on 13.8.1995, Ext.B1 will has come into effect. Under the will, first defendant is competent to transfer the property, Exts.B2 and B3 settlement deeds were thus executed by the first defendant. The alienations made by the father during his life time include the properties settled in the name of first plaintiff under Ext.A3, second plaintiff under Ext.A6 and 5th defendant under Ext.A9. Under Ext.A3, A6 and A9, the father settled 51.891, 32.123 and 60 cents respectively in favour of plaintiffs 1 and 2 and 5th respondent, including portions of the property covered under Ext.B1. The fact that existence of Ext.B1 will was not mentioned in Ext.A3, A6 and A9 is not a ground to hold that the testator had no intention to act upon Ext.B1 will, as Ext.B1 will itself provides that what the legatees could claim under Ext.B1 is only the property left behind after the death of the testator and the first defendant. In such circumstances, there was no necessity whatsoever for the RSA 61/2005 13 testator to mention the existence of Ext.B1 will in Ext.A3, A6 or A9. In such circumstances, when under Ext.A1, A schedule was alloted to first plaintiff, B schedule to second defendant, C schedule to second plaintiff, D schedule to 5th defendant, E schedule to 4th defendant and F schedule to third defendant and G schedule to the children of second defendant and the entire plaint schedule property is covered under Ext.B1, plaintiffs are not entitled to seek partition of the properties. Courts below grossly erred in holding that plaint schedule property is available for partition, ignoring Ext.B1 when execution of Ext.B1 is admitted and the only contention raised is that it was not acted upon and was acted upon. The evidence establish that it was intended to be acted upon. Though learned counsel appearing for respondents 1 and 2 vehemently argued that as no oral evidence was adduced by defendants, there is no evidence to prove that the testator had an intention to act upon Ext.B1 will, the very fact that after execution of Ext.B1 will, it was registered and as Ext.B1 will came into effect only on the death of the testator on 13.8.1995 and subsequent to his death, first defendant who is competent under the provisions of Ext.B1, to RSA 61/2005 14 execute the settlement deeds, executed Exts.B2 and B3 settlement deeds in June 1996, finding of the courts below that Ext.B1 will was not intended to be acted upon is unsustainable. In such circumstances, the decree granted by learned Munsiff as confirmed by learned Sub Judge can only be set aside. 13. Appeal is allowed. Preliminary decree passed by Munsiff – Magistrate, Erattupetta in O.S.65 of 1999 as confirmed by Sub Court, Pala in A.S.67 of 2001 are set aside. OS.65 of 1999 stands dismissed. No costs. M.SASIDHARAN NAMBIAR, JUDGE lgk