IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 229 of 2010()
1. PALLIKKARA SOMAN,
... Petitioner
Vs
1. PALLIKKARA ASHOKAN, S/O.RAMANKUTTY,
... Respondent
2. THADAPARAMBIL PRASANNA,
3. KUMMAL DEVAKI,
For Petitioner :SRI.R.BINDU (SASTHAMANGALAM)
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :08/03/2010
O R D E R
THOMAS P JOSEPH, J.
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R.S.A.No.229 of 2010
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Dated this 08th day of March, 2010
JUDGMENT
Dispute is concerning the due execution and attestation of
Ext.B1, Will dated 14-03-1997 set up by the respondents to resist the
claim of appellant for partition of item Nos.2 to 5 of plaint schedule. So
far as item No.1 of plaint schedule is concerned, there is already a
preliminary decree for partition which is not under challenge.
2. Appellant/plaintiff and respondents/defendants are legal
representatives of the late Ramankutty to whom plaint schedule item
Nos.2 to 5 admittedly belonged and but for Ext.B1, Will are liable to be
partitioned among appellant and respondents. Late Ramankutty died
on 07-07-1999. According to the respondents Ext.B1 is the last Will
and testament of the said Ramankutty concerning item Nos.2 to 5, the
bequest being in favour of respondents. Learned counsel for appellant
submits that appellant is also a legate under the said Will though, in
respect of a small portion. Appellant claimed that he was not aware of
the said Will and that it could not have been executed by the late
Ramankutty since during the relevant time he was suffering from
physical infirmity following prolonged hospitalisation and treatment.
He disputed the sound disposing state of mind of the said Ramankutty.
Appellant gave evidence as DW1 and stated that he saw Ext.B1 for the
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first time when it was put to him in cross examination. Before that, he
had no occasion to see either Ext.B1 or a copy of it. Respondent No.1
gave evidence as PW1 and claimed that his father Ramankutty
executed Ext.B1 in sound health, in body and mind. DWs.2 and 3 are
one of the attesting witness and the scribe respectively of Ext.B1.
They stated about the due execution and attestation of the Will. It is
also their evidence that testator was in sound disposing state of mind
at the relevant time. DW3, the scribe claimed that the deceased had
been known to him for quite sometime and that it is as per instructions
given by the deceased that he prepared draft of the Will and the
original after getting approval from the deceased. Respondents have
also produced Exts.B1 and B2 as to prove that deceased was in sound
disposing state of mind at the relevant time. It has come in evidence
through Exts.A1 to A12 and X1 that the deceased was admitted in the
hospital on 12-07-1994, discharged on 09-07-1994, again admitted on
31-07-1994, underwent surgery for Ulcer on 04-08-1994 and was
discharged thereafter on 10-08-1994. He was again admitted on 11-
01-1996 for vomiting, malena etc. Endoscopy was done on 19-01-1996
and he was discharged. That evidence only revealed physical ailment
of the deceased and has nothing to do with his sound disposing state
of mind at the time of Ext.B1. It is also relevant to note that it was
after the hospitalisation and treatment including operation that the
deceased executed Exts.B16 and B18, settlement deeds in favour of
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respondent No.3 and the appellant, respectively. Exts.B19 and B20
and the evidence of DW1 is to the effect that even thereafter deceased
was operating his bank accounts going to the bank on his own. Thus, it
is in evidence that even after the treatment and operation deceased
was under sound disposing state of mind that he was able to execute
Exts.B16 and 18 which are not under challenge and under Ext.B18,
appellant also got advantage in respect of the property of the
deceased. Courts below held that there is no reason to disbelieve the
evidence of DWs.1 to 3 and found in favour of due execution,
attestation and registration of Ext.B1 referring to the relevant decisions
on the point. It has also been noticed by the courts below that though
registration by itself is not a substitute for proof regarding due
execution and attestation that also is a relevant fact to be taken into
account particularly in this case where evidence revealed that though
the document was executed on 14-03-1997 the same was presented
for registration by the deceased himself on 20-03-1997. Thus on the
evidence courts below found in favour of due execution and attestation
of Ext.B1. I do not find any substantial question of law arising for a
decision as urged in the memorandum of appeal.
Resultantly the second appeal is dismissed in limine.
THOMAS P JOSEPH,
JUDGE
Sbna/