IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 130 of 2005()
1. MARY, W/O. LATE OUSEPH PETER, AGED 72,
... Petitioner
2. K.A.ELIZABETH, W/O.LATE JOSEPH,
3. T.J.ANTONY, S/O. LATE JOSEPH,
4. T.J.AUGUSTINE JOHN,
5. T.J.LOURD, D/O. LATE JOSEPH, AGED 38,
6. T.J.MARY, D/O. LATE JOSEPH, AGED 36,
7. T.J.JELTHROUGHDHU,
8. T.J.HENTRY ROY, S/O. LATE JOSEPH,
9. SELEENA VARGHESE (DIED),
10. T.V.ANTONY, S/O. LATE VARGHESE,
11. LILLY, W/O. LATE T.V.JOSEPH,
12. KUMARI LIPSY, (MINOR),
13. UMARI PEKSHY, (MINOR),
14. T.V.JOHN, S/O. LATE VARGHESE,
15. CHRISTHU RAJ, S/O. LATE VARGHESE,
16. T.V.VARKEY, S/O. LATE VARGHESE,
17. BREGIT, D/O. LATE VARGHESE, AGED 42,
18. MARY, W/O. LATE FRANCIS, AGED 45,
19. CRAMEENA BREGITH, D/O. FRANCIS,
20. ESTHER ANSI, D/O. FRANCIS,
Vs
1. SALEENA, W/O. RAPHEL (ALIAS)
... Respondent
2. RAFI, S/O. RAPHEL (ALIAS) PETER,
3. JOSE S/O. RAPHEL, AGED 36 YEARS,
4. MILTON S/O. RAPHEL, AGED 30 YEARS,
5. ANNY D/O. RAPHEL, AGED 42 YEARS,
6. BEENA D/O. RAPHEL, AGED 28 YEARS,
7. MRS.SILVESTOR SHERLY, W/O. SILVESTOR,
8. MRS.MARIA LEISSE,
9. RITA W/O. LATE ANTONY, AGED 45,
10. ALLEN S/O. LATE ANTONY,
For Petitioner :SRI.RAJU ABRAHAM PULPARA
For Respondent :SMT.P.R.LESLIE STEPHEN
The Hon'ble MR. Justice K.P.BALACHANDRAN
Dated :24/06/2008
O R D E R
K.P.BALACHANDRAN, J.
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R. S. A. No.130 of 2005
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Dated this the 24th day of June, 2008
JUDGMENT
The plaintiffs in O.S.1380/99 on the file
of the Munsiff’s Court, Ernakulam who lost
their case in the first appellate court as the
first appellate court reversed the decree
passed by the trial court and dismissed the
suit, have preferred this R.S.A.
2. Appellants filed O.S.1380/99 aforesaid
for a decree for partition and separate
possession of their 4/5 share in the scheduled
property alleging inter alia that the
scheduled property was purchased by one
Vruschy who was the mother of the first
plaintiff and mother-in-law of plaintiffs 2, 9
and 18 as also the first defendant as per
Ext.A1 sale deed of the year 1957; that the
said property has got an extent of 11.25 cents
R. S. A. No.130 of 2005 -2-
comprised in Sy. No.1070/1 of Cheranallur
Village; that after purchase, Vruschy
constructed a building in the scheduled
property which was numbered with Door
No.1536/47; that after construction of the
building her eldest son Raphel alias Peter who
was the husband of the first defendant was
permitted to reside therein with his family;
that Raphel died and his wife and children are
defendants 1 to 6 and they continued to reside
in the said building with the permission of
the plaintiffs; that deceased Vruschy had four
sons and one daughter that the children of
Vruschy are entitled to get equal shares over
the scheduled property and they are co-owners
along with the defendants and despite demand
for partition, the defendants were not
agreeable and they also committed waste in the
property so as to defeat the interests of the
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plaintiffs and hence, plaintiffs 18 to 20
filed O.S.365/99 seeking prohibitory injunction
restraining defendants 1 to 6 from committing
acts of waste and alienation of the property
and other reliefs; that injunction was granted
in the said suit; that even after the said
suit, the demand of the plaintiffs for
partition of the scheduled property was not
acceded to by the defendants and hence, the
suit.
3. Defendants 1 to 10 filed a written
statement contending that the first defendant
is having exclusive ownership of the scheduled
property by virtue of a will executed by
Vruschy on 30/11/1969; that though Vruschy
purchased the scheduled property as per Ext.A1
sale deed, the building therein was
constructed utilising the funds of the first
defendant; that she got the help of
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Vimalalayam, a religious and charitable
institution at Ernakulam for construction of
the said building; that herself and her
husband and children were residing in the said
building for which permission of the plaintiff
was not required; that the first defendant
became the absolute owner and was in
possession and enjoyment of the scheduled
property from the date of death of Vruschy;
that plaintiffs and defendants 7 to 10 have no
right to inherit the scheduled property and
they are not co-owners; that they are not
committing any act of waste in the property;
that the plaintiffs have no cause of action
and that the suit has to be dismissed.
4. On the above pleadings, the trial
court raised necessary issues for trial and
after trial and considering the evidence
adduced at trial which consisted of oral
R. S. A. No.130 of 2005 -5-
evidence of PWs.1 to 3 and DWs.1 and 2 and
documentary evidence of Exts.A1 to A3 and B1
decreed the suit allowing partition of the
scheduled property by metes and bounds and
allotment of separate possession of plaintiffs
4/5 share in the scheduled property and the
building therein. The decree of the trial
court was assailed in appeal by defendants 1
to 8 filing A.S.121/02 before the district
court, Ernakulam and the appellate court
allowed the appeal setting aside the decree
and judgment passed by the trial court and
dismissed the suit. Hence, this R.S.A by the
aggrieved plaintiffs.
5. It is vehemently contended before me
by the learned counsel for the appellants that
Ext.B1 will is not genuine and is concocted
and the first appellate court should not have
upheld the will in which event the property
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would have been partible as has been found by
the trial court and that in the circumstances,
the trial court decree be restored allowing
the R.S.A and that substantial questions
regarding the validity of the will as
formulated in the appeal memorandum do arise
for consideration in this R.S.A. It is also
contended that there are suspicious
circumstances attending execution of the will
and that the defendants not effecting mutation
after 30 years will show that the will was not
in existence and was being made up later so as
to advance exclusive title over the scheduled
property.
6. I have carefully gone through the
judgments of the trial court and the first
appellate court. It is not in dispute and it
cannot be gainsaid either that if Ext.B1 will
is found to be not genuine the scheduled
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property and the building therein becomes
partible, the plaintiffs and defendants being
co-owners on the death of Vruschy intestate.
So the material question to be adjudged is the
question as to whether Ext.B1 will is genuine
or not. In this context as rightly observed by
the first appellate court what is to be given
utmost importance for considering the
genuineness or otherwise of the will is the
evidence tendered by PW3 the first plaintiff
and DW2 sister Thresiamma George who was the
custodian of the will. PW3 is the first
plaintiff. She is the only surviving daughter
of deceased Vruschy. The other children of
Vruschy were males and are no more. Both PW3
and DW2 are of the same age group being aged
more than 70 years at the time of tendering
the evidence and they were rightly found by
the first appellate court as competent
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witnesses now available to tell about past
events as the other witnesses are not persons
who can be said to have knowledge of matters
that took place prior to 30 years namely of
matters pertaining to period from 1957 onwards
and during 1969 when the will was executed.
7. Ext.B1 is the copy of the will alleged
to have been executed by the Vruschy on
30/11/69. First attestor of the will is
Illiparambil Joseph Mani of Vaduthala and the
second attestor is sister Thresiamma George of
Vimalalayam. The contention of the respondents
is that Ext.B1 was created on a later date by
the first defendant and her children to defeat
the rights of the respondents. As observed by
the first appellate court, it is true that at
the first blush there are suspicious
circumstances surrounding the execution of the
will inasmuch as testator has bequeathed the
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property in favour of first defendant the wife
of her eldest son Raphel alias Peter at a time
when Raphel himself was alive and further that
it is seen executed in favour of first
defendant to the exclusion of also three other
sons of Vruschy namely Joseph, Varghese and
Francis and the one and only daughter of
Vruschy namely the first plaintiff. It is true
that in the normal course one would not expect
the testator executing such a will excluding
all her children and executing will to one of
the daughters-in-law only. But all the same,
the first appellate court found that the
reasons for executing the will exclusively to
the first defendant were explained also in
Ext.B1. Such recitals are to the effect that
for purchase of the property covered by the
will the first defendant had advanced money.
Further with the help of Vimalalayam sisters
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the first defendant constructed the house in
the property. The first defendant, her husband
Raphel and her children were residing in the
property. Of the aforesaid reasons, the
defendants dispute all the statements except
that the first defendant, her husband and her
children were residing in the building in the
scheduled property. They also point out that
in the written statement of defendants 1 to 6
they have not advanced contentions supporting
such recitals in Ext.B1.
8. It is worthy to note that despite the
fact that Vruschy died in 1971 there was no
demand for partition advanced by the
plaintiffs till 1997. Even O.S.365/99 which
was a suit for injunction restraining the
defendants from dealing with the property was
filed only in 1999 and prior thereto it does
not appear that there was any dispute between
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the plaintiffs and the defendants or that the
plaintiffs have advanced any demand for
partition. It is submitted that the first
defendant is the widow of eldest son Raphel
that plaintiffs 2 to 8 are L.R.s of Joseph;
that plaintiffs 9, 10 and 14 to 17 are L.Rs of
Varghese and plaintiffs 18 to 20 are L.Rs of
Francis who were all deceased sons of late
Vruschy. The first plaintiff is the only
daughter of Vruschy and she was examined as
PW3. She has disputed the existence of will as
according to her, Vruschy had told her that
she had executed document in her favour. She
admitted in cross examination that she has
never taken any usufructs from the property
nor has she shared any income from the
scheduled property with the defendants though
according to her several years back a jack
fruit tree was cut and taken by her as it was
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given to her by her mother. She has however
denied the signatures seen in Ext.B1 as that
of her mother. All the same, in cross
examination she said that the first defendant
is working in Vimalalayam convent and PW3 used
to go to the house of the first defendant and
the building in the scheduled property was
constructed by the first defendant with the
help of Vimalalayam sisters. According to her,
there was also a Tharavad house where her
father and mother were residing and that was
their Kudikidappu property. According to
PW3/the first plaintiff, her mother used to
sign drawing a cross and encircling it and
that aspect also is corroborated by the
testimony of DW2. PW3 also admitted that four
cents and house was assigned to the first
defendant by her mother. Consequently, PW3
limited her claim for partition over the
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balance seven cents only from out of the
plaint schedule property. The admissions so
made by PW3 were not attempted to be explained
away or clarified in re-examination. It is
seen from the judgment of the first appellate
court that realising the difficulty with which
the defendants were confronted in view of the
above evidence, affidavits were caused to be
filed by the first plaintiff and the sixth
plaintiff who were examined respectively as
PW3 and PW1 swearing that during evidence PW3
was in an abnormal mental condition as she was
a diabetic patient and was suffering from
blood pressure and she was examined as a last
witness of the day and due to long waiting and
strain on her mind she made contradictory
statements without any foundation whatsoever
and that the statements made by PW3 is
erroneous and against facts. The above
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affidavits were filed with the specific view
of explaining the admissions and contra-
dictions brought out in evidence of PW3. As
observed by the first appellate court if
actually PW3 was sick and strained she could
have requested for time and sought adjournment
of the case for her evidence. In fact before
examination of PWs.1 and 2 the witness to be
examined was PW3 as she was the one who is
competent to speak to the facts of the case
and not PWs.1 and 2. The affidavits caused to
be filed by PWs.1 and 3 explaining the
mistakes in cross examination cannot be
countenanced as the proper method is to
clarify things in re-examination and that was
not resorted to.
9. As regards the proof of will it has
been stated that the first attesting witness
Joseph Mani is not examined. The second
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attestor DW2 gave evidence in support of the
case of the defendants. She is an aged nun and
a social worker in Vimalalayam convent at
Ernakulam at the relevant time. At the time of
tendering evidence she was aged 70 years and
was working as mother superior in Mariyalayam
convent at Panangad. According to her,
deceased Vruschy was working in Vimalalayam
and the first defendant and 18th plaintiff were
also working there. She has deposed that
Ext.B1 was executed by Vruschy in 1969 and it
was attested by her and further that the
health and mental condition of the testator
was good. It is with DW2 that Ext.B1 was
entrusted for safe custody and according to
DW2 it was only four years back that the
document was given to the first defendant.
According to DW2, all the children of Vruschy
had knowledge of the existence of the will.
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The first appellate court has observed that
DW2 is highly educated and is an MSW degree
holder and is working as mother superior in a
convent. She also knows the first plaintiff
and DW2 is one who is having love and
affection towards members of the family and
deceased Vruschy. The plaintiffs could not
attribute any malafides or ill-will in DW2 so
as to tender false evidence favouring the
defendants. According to DW2, Vruschy put her
signature by drawing a cross and encircling it
and the shape of the signature of the testator
is spoken to as being in that fashion by PW3
as well. In view of the relationship DW2
maintained with Vruschy and her family
members, it is quite probable that Vruschy
preferred DW2 as one of the attestors. There
is no merit in the contention that the first
defendant was preferred by Vruschy to her own
R. S. A. No.130 of 2005 -17-
son Raphel who is the husband of the first
defendant. When Ext.B1 will is executed in
favour of the first defendant who is the wife
of the eldest son of Vruschy the benefit
obviously goes to her son and his children
through the first defendant. As rightly
observed by the first appellate court, there
was no reason for the trial court having
ignored the evidence of PW3 and DW2 which if
properly appreciated would have enabled the
court to believe their testimony and to uphold
the genuineness of Ext.B1 will. PW1 as
observed by the first appellate court is aged
only 41 years and obviously he has no direct
knowledge about anything which is relevant for
adjudication of the matters in issue. Her
evidence is only on hearsay and has therefore,
only to be discarded except on matters within
her direct knowledge when she deposed that the
R. S. A. No.130 of 2005 -18-
first defendant and family were residing in
the building ever after its purchase and that
Vruschy and her husband were residing in
another building. PW2 is a Corporation
Councilor. He claims that he was a mediator in
the dispute between the plaintiffs and the
defendants and according to him, the existence
of the will was not told to him. The first
appellate court has rightly discarded his
testimony as he is a C.P.M activist whereas
DW1 the second defendant is an office bearer
of the Congress Party and obviously his
evidence will be interested and prejudiced.
10. The contention advanced before me
that the original of the will is not produced
but only a photostat copy thereof is produced
and therefore, it should not have been
accepted for adjudicating the genuineness is
also not of merit in the circumstances as
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observed by the first appellate court. The
original will was very much available before
the trial court in O.S.365/99 filed by the
plaintiffs 18 to 20 and at the time of trial
if at all any of the parties wanted to have it
brought for consideration in O.S.1380/99 that
could have been called for. The non-probating
of the will set up in defence without it
having been probated is also no infirmity.
There is thus, no merit in this R.S.A and no
question of law and much less any substantial
question of law arises for consideration in
this R.S.A.
11. In the result, I dismiss this R.S.A
in limine refusing admission.
K.P.BALACHANDRAN,
JUDGE
kns/-