IN THE HIGH COURT OF KERALA AT ERNAKULAM
AS.No. 710 of 1997(E)
1. NARIKUTTY PRASANNA
... Petitioner
Vs
1. T.P.PADMINI
... Respondent
For Petitioner :SRI.V.RAJAGOPAL
For Respondent :SRI.T.A.RAMADASAN
The Hon'ble MR. Justice M.L.JOSEPH FRANCIS
Dated :15/07/2009
O R D E R
M.L. JOSEPH FRANCIS, J.
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A.S.No. 710 of 1997
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Dated this the ...th day of July, 2009
JUDGMENT
This appeal is filed by plaintiffs 1 and 2 in O.S.No. 231
of 1993 on the file of the Sub Court, Tellicherry. The
appellants/plaintiffs filed the suit for a declaration that the
plaint schedule property belongs to the plaintiffs exclusively on
the strength of a Will dated 25.11.86 executed by late Gouri
and for consequential injunction restraining the defendants
from taking any portion of the property from the possession of
the plaintiffs by the final decree proceedings in O.S.68 of 89 of
Sub Court Thalassery and for other reliefs.
2. The plaintiffs averred that the plaint schedule property
originally belonged to one Lakshmi and her children Sumitha,
Sarada, Gouri, Bharathi and Jayapalan. As per partition deed
No. 1727/20, the properties were partitioned between them and
plaint schedule property was got by late Gouri as item No.5 in
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the said deed. The said Gouri died on 2.1.1987. Her mother
and husband pre-deceased her and she had no children.
Therefore, her sisters and the only brother Jayapalan were the
legal heirs of deceased Gouri. The plaintiffs are the wife and
child of Jayapalan, the only brother of the said Gouri.
Jayapalan died in 1986 and the plaintiffs are his legal heirs.
The defendants herein are the sisters and children of deceased
sisters of the said Gouri.
3. Although deceased Gouri had executed a Will dated
25.11.86 bequeathing the plaint schedule property in favour of
the plaintiffs, who were residing along with deceased Gouri.
After the death of her husband, Gouri came down to her native
place at Kannur and constructed a house in the plaint schedule
property and settled down there. She was residing along with
her brother, deceased Jayapalan, and the plaintiffs, his wife and
child, even after the death of Jayapalan. Deceased Gouri
persuaded them to stay with her and they continued to stay in
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the said house and they were looking after deceased Gouri
with utmost affection and care. Until the death of said Gouri,
she was in a sound and disposing state of mind and she was
competent to execute the will. She died on account of heart
attack. However the plaintiffs did not know of the execution of
the Will.
4. A suit for partition of the plaint schedule property was
filed by Sarada and Bharathy, who are sisters of deceased
Gouri, claiming partition and separate allotment of their share.
The plaintiffs were also made parties in the said suit as they
were also legal representatives of deceased Gouri. Since the
plaintiffs were not aware of the will, they could not put
forward any claim as per the Will. They only claimed a share in
the property as legal representatives of deceased Gouri.
Subsequently a preliminary decree was passed in O.S.
No.68/89. As per the preliminary decree, the plaintiffs were
held to be entitled to 25/192 shares.
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5. However, the plaintiffs came to know of the Will only
on 19.2.1993. There was a steel shelf in the house with a
locker inside. The sarees of Gouri were kept in the locker in
that shelf. While the plaintiffs were cleaning the shelf, the
sarees of the deceased were taken out and from among the
sarees in the locker, the Will left by Gouri was got. Although
the Will is not registered, it is properly attested by two
attesting witnesses. The plaintiffs enquired with the attesting
witnesses and they also testified to the execution of the Will by
deceased Gouri. The deceased Gouri was very affectionate
towards the plaintiff, since they are the wife and child of her
only brother, who stayed with her and looked after her.
6. As per the Will, the entire plaint schedule property is
bequeathed in favour of the plaintiffs. The defendants, who are
sisters and children of the deceased, have absolutely no right
to the property. Since the plaintiffs were not aware of the Will,
the plaintiffs could not produce the Will for claiming exclusive
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right on the basis of the Will. It is accordingly that the
plaintiffs filed the suit for a declaration that the plaint schedule
property belonged exclusively to them on the basis of the Will
and they also prayed for injunction.
7. In the Sub Court PWs. 1 to 3 and DW1 were
examined. Exts.A1 to A5, B1 to B3 and X1 and X2 were
marked. The learned Sub Judge, on considering the evidence,
found that the plaintiffs failed to prove the genuineness of
Ext.A5 Will and the suit was dismissed with compensatory
cost of Rs.2,000/- Against that judgment and decree the
plaintiffs filed this appeal.
8. Heard the learned counsel for the appellants and the
learned counsel for the respondents.
9. The learned counsel for the appellants submitted that
the learned Sub Judge ought to have found that the evidence of
the second plaintiff and also the attesting witnesses to the Will
clearly prove the execution of the Will by deceased Gouri.
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Whereas, the learned counsel for the respondents submitted
that the learned Sub Judge is perfectly justified in finding that
Ext.A5 Will is not genuine.
10. The main dispute is with regard to the genuineness
of Ext.A5 unregistered Will dated 25.11.196 alleged to have
been executed by deceased Gouri in respect of the plaint
schedule property in favour of the plaintiffs. There is no
dispute that the plaint schedule property was allotted to the
share of Gouri as Item No.5 as per Partition Deed No.1727 of
1970 executed by Gouri and others. Jayapalan is the brother of
deceased Gouri. The first plaintiff is the wife and second
plaintiff is the son of Jayapalan. Jayapalan died in 1986 and
Gouri died on 2.1.1987 due to heart attack.
11. Ext.B1 is the letter dt.13.2.1974 sent by deceased
Gouri to Central Bank of India, Kannur branch. Ext.B1
contains the admitted signature of Gouri. Ext.B2 is the cheque
dt.17.11.1986 drawn by deceased Gouri in favour of C.M.
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Bharathan. It also contained the admitted signature of Gouri.
Ext.B3 is another cheque dt.8.12.1986 issued by deceased
Gouri, which also contained the admitted signature of Gouri.
Ext.A5 Will and Exts.B1 and B3 were fowarded to the
handwriting expert for opinion. The relevant portion regarding
the expert opinion is contained in the judgment of the learned
Sub Judge, which reads as follows:
“In order to substantiate the case of the plaintiffs
Ext.A1 partition deed dated 16-11-70 is produced.
The name of Gouri is also seen in Ext.A1
document. This Ext.A2 was produced by the
plaintiffs in order to substantiate their case that
there was a partition as alleged in the plaint.
Ext.A1(a) is the last page of Ext.A1 which was
subsequently produced and marked as Ext.A1(a).
It is a portion of the schedule attached to Ext.A1.
Ext.A2 is the certified copy of decree on the file of
this court in O.S. 68/89 dated 12-8-91. It is a
preliminary decree for partition. This Ext.A2
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indicates that there was partition suit pending
before this court. A preliminary decree was passes
as alleged in the plaint. Further, the proceedings
are initiated for passing a final decree. Ext.A3 is
the income tax clearance certificate produced by
the plaintiffs in order to indicate that Gouri was an
income tax prayer. Ext.A4 is a copy of letter
alleged to have issued by deceased Gouri
addressed to the Commissioner, Kannur
Municipality. This Ext.A4 is a request to the
Commissioner not to increase the tax in respect of
the property. Ext.A5 is the alleged Will produced
by the plaintiffs in order to show that the entire
property covered by Ext.A5 were bequeathed in
favour of the plaintiffs. It is an unregistered Will
dated 25-11-86 alleged to have executed by late
Gouri with attestation of two attesting witnesses.
This Ext.A5 is seriously disputed by the
defendants on the ground that it is a concocted and
forged document. They dispute its genuineness.
So, this Ext.A5 was sent for opinion of the expert.
That Expert opinion was received and marked as
Ext.X1. It is dated 27-12-95 wherein the expert
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stated the documents in this case have been
carefully and thoroughly examined. The person
who wrote the red enclosed signatures stamped
and marked A1 to A5 did not write the red
enclosed signature similarly stamped and marked
Q1 to Q2. The admitted signatures of the deceased
Gouri were sent to the expert for his opinion. So,
this Ext.X1 report indicates that the alleged Will
Ext.A5 does not bear the signature of deceased
Gouri as contended by the plaintiff. Ext.X2 is an
opinion of the Expert which was called for at the
request of the defence counsel. The defence
counsel filed a petition to serve interrogatories on
the Expert so as to enlighten to process by which
the conclusions were reached by the Expert. In
that answer to the interrogatories, the Expert
submitted that he carefully and throughly
examined the original documents of the case in all
aspects of handwriting, identification and detection
of forgery with the scientific aids available in the
Govt. of India Laboratory at Hyderabad.
According to him the person who wrote the red
enclosed signature stamped and marked A1 to A5
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did not write the red enclosed signatures similarly
stamped and marked Q1 and Q2, based on the
following considerations:
Inter-se comparison of the standard signature
marked A1 to A5 reveals that these signatures are
written with freedom and speed consistent with the
Skill of the writer, show uniform and smooth line
quality, carelessness and abandon. These features
being accompaniment of natural writing indicate
an automatic and almost unconscious act on the
part of the writer. On the other hand, the disputed
signatures marked Q1 and Q2 show consciousness
on the part of the writer as indicated by hesitation
at places, defective line quality, drawn and
laboured in their execution which are inherent
signs of imitation. The disputed signatures Q1 and
Q2 strictly adhere to a fixed model and show less
variation among themselves when compared with
standard signature A1 to A5. The disputed
signatures Q1 and Q2 almost tally on super-
imposition indicating that these signatures have
been produced by imitation.
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In addition, they also show fundamental
divergences in individual writing habits. Manner
of execution of letter “N” with rotundity of its
shoulder as observed vide A5 is found different in
disputed signatures Q1 and Q2 – the letter “N” is
written resulting angularity at its apex in the
disputes signatures; location and direction of finish
in execution of letter “O” is different vide Q1, Q2
and A1 to A5; manner of execution of letter “U”
with angularity of loops as observed in standard
signatures A1 to A5 is found different in disputed
signatures Q1 and Q2, shape of curved part of “P”
is also found different vide Q1, Q2 and A5.
The collective consideration of the presence
of various inherent signs of imitation in the
questioned signatures and the characteristic
differences in the individual writing habits
between the questioned and standard signatures are
significant and sufficient and are not due to natural
variation or intended disguise but due to their
different authorship”.
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12. The second plaintiff, who was examined as PW1,
has no direct knowledge with regard to the execution of Ext.A5
Will. PW2 is alleged to have been an attesting witness to
Ext.A5 Will. PW2 deposed that the contents of Ext.A5 Will
was read over by the Scribe in the presence of Gouri and the
attesting witnesses. PW2 deposed that he signed Ext.A5 Will
first and thereafter the second attesting witness signed it. He
further deposed that Gouri and the second attesting witness
saw him signing Ext.A5 and he saw Gouri and the second
attesting witness signing Ext.A5. PW2 deposed that Gouri
died two months after the execution of Ext.A5 Will due to
heart attack. In Ext.A5 the name of the Scribe, who prepared
that document, is not mentioned. In cross examination PW2
admitted that he did not say anything about the Will even to
the plaintiffs after the death of Gouri till 1993.
13. PW3 deposed that he saw Gouri signing Ext.A5 Will.
He also deposed that he did not reveal about the execution of
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the Will till 1993. The version of Pws. 2 and 3 that they did
not disclose anything about the Will to the plaintiffs or to
anybody else even after the death of Gouri appears to be not
probable if Ext.A5 Will was actually executed by Gouri.
14. On appreciating the testimony of Pws. 1 to 3 in the
light of the expert opinion, I am of the view that the learned
Sub Judge is perfectly justified in finding that Ext.A5 is not a
genuine Will executed by Gouri. Considering the facts and
circumstances of the case, I find no reason to interfere with the
judgment and decree of the lower court. Therefore, this appeal
is liable to be dismissed, as it is without any merit.
15. Accordingly this appeal is dismissed. The judgment
and decree dismissing O.S.No. 231 of 1993 on the file of the
Sub Court, Tellicherry are confirmed. The parties are directed
to suffer their respective cost in this appeal.
(M.L. JOSEPH FRANCIS)
tm Judge
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