IN THE HIGH COURT OF KERALA AT ERNAKULAM
AS.No. 181 of 2000(B)
1. PREMAN
... Petitioner
Vs
1. VASANTHI
... Respondent
For Petitioner :SRI.G.SREEKUMAR (CHELUR)
For Respondent :SRI.T.V.ANANTHAN
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :23/06/2010
O R D E R
M.N. KRISHNAN, J.
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A.S. NO. 181 OF 2000
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Dated this the 23rd day of June, 2010.
J U D G M E N T
This appeal is preferred against the
judgment and decree passed by the First Addl.
Subordinate Judge, Ernakulam in O.S.242/96. The
suit is one for partition with respect to three
schedules of property. A schedule is the
property which jointly belonged to Pushpavally,
plaintiffs and Rameshan. B schedule is the
property which belonged to the husband of the
first defendant namely Rameshan. C schedule is
the money which the first defendant has got on
the death of Rameshan from his office namely the
Cochin Port Trust. It is the case of the
plaintiffs that on the death of Rameshan and
after the death of the mother, the properties
are liable to be divided and thereafter she is
claiming right over the property of Rameshan as
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well as over the property of the mother of which
the widow and children of a predeceased son is
entitled to get share.
2. So far as the B schedule is concerned it
is contended that the mother’s share which is
1/4th would equally devolve upon the plaintiff,
Santha and the defendants and so such a share is
also to be worked out. C schedule also is
claimed in the same fashion. On the other hand
the defendants would contend that the plaint
schedule property that is described in A
schedule also belongs to them as the legal
representatives of Rameshan as well as the legal
representative of the mother of Rameshan namely
Pushpavally. In B schedule also they would
contend besides getting absolute 3/4th right over
the property as the legal representatives of
Rameshan they are also entitled to the share of
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the property which devolved upon Pushpavally as
the legal representatives of deceased Rameshan.
In C schedule also it is the contention.
3. Now in the plaint there is a specific
contention that Santha, the sister, had
relinquished her 1/4th right in the property and
further the mother had executed a Will in favour
of the first plaintiff whereby her share as well
as the share obtained by her as legal
representative of her deceased son Rameshan had
been bequeathed in favour of the first
plaintiff. With respect to B schedule also the
plaintiff claims right over the property which
the mother had obtained and that had been
bequeathed by virtue of the Will. In C schedule
also the same is the contention. Therefore
everything depends upon the acceptability of the
Will which is executed by Pushpavally in favour
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of the first plaintiff. The defendants 1 to 3
would contend that Pushpavally could not have
executed such a Will on her own volition and
free consent and further it is the outcome of
undue influence, coercion, fraud etc. played on
Pushpavally and therefore that document will
never confer any right on the first plaintiff
with respect to the right of Pushpavally and so
that has to be ignored and partition has to be
effected. So the whole question depends upon
the acceptability of the Will. Now the evidence
tendered in support of the Will is the oral
evidence of PWs.1 to 3.
4. PW1 is the propounder of the Will. He
is an employee in the Sub Registrar office. He
would depose that the mother had executed the
Will in his favour and therefore he is entitled
to the right. He is not a witness to the
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document. PW2 is one Maya. She is a relative
of the plaintiff and defendants 1 to 3.
According to her Pushpavally came to her
residence and told her that she is executing a
Will in favour of the first plaintiff and
thereafter they had gone to the Registrar’s
office and Pushpavally had seen the attesting
witnesses affixing her signature and she has
seen Pushpavally affixing her signature. She
had also spoken about the other attesting
witnesses putting the signatures in the Will and
she would further depose that Pushpavaly also
had seen the attesting witnesses affixing her
signature in the Will. She has also deposed
that Pushpavally was mentally in a fit state of
condition to execute the Will.
5. In the cross examination it is brought
out that there was some ailment for Pushpavally
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at a later point of time and ultimately she was
treated in the Medical Trust Hospital. It is
deposed by her, on the date of execution of the
Will, Pushpavally came to her residence and
requested her to witness the Will. They had
gone together to scribe’s office and the
document was written and it was read over to the
executant and thereafter only signatures had
been put.
6. Now the evidence of PW2 is challenged by
the other side mainly on two points namely that
she had only seen Pushpavally affixing two
signatures and PW2 had stated that nobody else
was there at the time of the execution of the
Will whereas PW3 has deposed about the persons
in his office. Now it has to be remembered that
the defendants are challenging the Will only on
the ground of undue influence, coercion and not
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on the basis of lack of execution or that
Pushpavally was not in a fit state of mind to
execute the Will.
7. PW3 is a person who has identified the
signature of Pushpavally before the Registrar.
He knows Pushpavally. He had deposed before
Court regarding the signature put by Pushpavally
before the Registrar and has identified her as
Pushpavally.
8. I also refer to the endorsement in
Ext.A2 which reveals that executant has admitted
the execution of the document and she had been
identified and the document has been registered.
It has been registered from the Registrar’s
office.
9. DW1, who is challenging the Will would
assert that the Will has been executed by
compulsion, fear and so on and the reason for
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stating so, according to her, is that PW1 had
equal love and affection for her husband as
well. The evidence of PWs.2 and 3 does not
suffer from any infirmity at all. They had
spoken about the execution of the Will, the
presence of the attesting witnesses, the mental
capacity of Pushpavally and therefore the
evidence is sufficient u/s 63 of the Indian
Evidence Act regarding the proof of execution of
the Will.
10. Now the two other points to be
considered are, one is whether there is any
suspicious circumstances surroundings the
execution of the Will and the other is whether
coercion or undue influence is used for the
preparation of the Will. The suspicious
circumstance projected surrounding the execution
of the Will is that the first defendant and her
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children were excluded from inheriting any
property. It is brought out that PW1 was
residing with Rameshan. According to the
defendant it was till the death of Rameshan and
thereafter she was taken by the plaintiff. It
is seen from the plaint itself that the
relatives of the first defendant has started
living in the house where Rameshan lived and
therefore it is nothing but natural a mother
would like to join her son who is also well
placed in life. It can be seen that Pushpavaly
was not a patient who was bed ridden. She was a
heart patient from 1983 onwards. She continued
treatment and ultimately breathed her last on
18.11.93 on account of her heart problem. The
Will is executed on 25.9.93. Except the fact
that she is a heart patient no other materials
are available before Court to show that she was
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a person not capable of understanding the
consequences of her action and that she did not
have the mental capacity to execute the
document. Therefore repeated use of the word
‘suspicious circumstances’ will not be a
substitute for proof.
11. Now the next question is regarding undue
influence and coercion. It is a settled position
of law that when the contract is challenged and
said to be vitiated on the grounds mentioned
under the provisions of the Contract Act the
person who makes such allegations are expected
to prove the same. But u/s 16 (2) and (3) of
the Act when it is established that the person
who had executed the will was in a position
whereby the person exercising the influence was
able to dominate the will of other person to his
unfair advantage and that the said person was of
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a weak health, feeble minded then the person who
sets up the document should have to prove the
same. So the first aspect is whether there is
any undue influence at all. Any sort of
influence is not undue influence. For example a
child living with parents and parents executing
documents in favour of the children because they
live together, one cannot say that children were
in a position to dominate the will of the
parents. Similarly unless one is able to impress
upon the Court to think by making use of that an
unfair advantage was obtained, then only one can
say that there is undue influence. So just
because a will is executed in favour of one
child excluding the other one shall not jump to
the conclusion of undue influence. Here
plaintiff has looked after his mother who was
suffering from heart disease. I do not find any
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peculiar circumstances to warrant a presumption
regarding undue influence. There is nothing to
show that Pushpavally was having only a weak and
feeble mind and she was not able to understand
the consequences of her action. So there cannot
be any deemed domination of the Will as provided
u/s 16(2) of the Evidence Act.
12. The Hon’ble Supreme Court of India
in the decision reported in Subhas Chandra Das
Mushib v. Ganga Prasad Das Mushib (1967 KHC 591)
had made it explicitly clear that when one
pleads undue influence the party has to plead
the precise nature of the influence exercised,
the manner of use of the influence and the
unfair advantage obtained by the other.
13. So far as this case is concerned except
the three limbs the first two limbs are not
available in the pleadings even. It has also to
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be stated the case law had been discussed and
principles have been clearly laid down in the
latest decision of the Hon’ble Supreme Court
reported in Savithry v. Karthyayani Amma (2007
(4) KLT 811(SC). In that decision the Court
has stated how a will has to be proved when the
‘Will’ can be said to be vitiated by undue
influence etc. In paragraphs 14 and 15 of the
judgment the Hon’ble Supreme Court has held that
the burden of proving the allegation of coercion
is on the person who alleges the same. I am
conscious of the fact that when ingredients u/s
16(2) and (3) are established the burden may
shift on the propounder. As stated by me
earlier except the repeated use of the word
‘undue influence’ nothing is forthcoming before
this Court to establish the same. Therefore from
these discussions I think the evidence is
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sufficient to hold that Pushpavally was in a fit
state of mind capable of understanding the
consequences of her action and had executed
Ext.A2 and it is proved by the evidence of PWs.
1 to 3 and there is nothing to show that she was
dominated by the plaintiff in order to create a
will. So I hold that Ext.A2 will is properly
proved and it is not vitiated by fraud or
coercion and there are no suspicious
circumstances surrounding the execution of the
Will. Learned Subordinate Judge had really cast
the burden wrongly without looking the
conditions attached to S.16(2) and (3) of the
Contract Act and therefore it has committed the
error. So I find that Ext.A2 Will is valid.
14. Now let me decide on the shares. A
schedule property belonged to Pushpavally,
Remashan, Preman and Santha and each entitled to
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1/4 shares. By virtue of a surrender deed
Santha’s right had devolved upon Preman. So
also by virtue of the Will Pushpavally’s right
also had devolved upon him making 3 out of 4
shares. Rameshan’s one out of 4 shares would
devolve upon the mother and defendants 1 to 3
equally, i.e. 1/16 shares each. Pushpavally’s
share(mother) would go to 1st plaintiff by virtue
of the Will. So if plaint A schedule is divided
into 16 equal shares, 1st plaintiff would be
entitled to 13 such shares and defendants 1 to
3, one such share each.
15. B schedule exclusively belongs to
Rameshan and on Rameshan’s death that property
had devolved upon his wife, two children and
Pushpavally. By virtue of Ext.A2 executed by
Pushpavally’s right in Rameshan’s property goes
to the first plaintiff. So if the plaint B
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schedule properties are divided into four equal
shares, one such share will go to the first
plaintiff and 3/4 shares will be allotted to
defendants 1 to 3 together. So far as C
schedule is concerned this Court persuaded the
learned counsel for the plaintiff not to proceed
for the reason it is a benefit obtained on the
death of the husband. Therefore he is not
pressing for that so I delete C schedule from
partition.
16. Therefore the appeal is allowed and a
preliminary decree for partition is passed as
follows.
(1) A schedule property be divided into 16
equal shares and allot 13 such shares to the
first plaintiff and three such shares jointly to
defendants 1 to 3.
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(2) Plaint B schedule property be divided
into 4 equal shares and to allot one such share
to the first plaintiff and three such shares to
the defendants 1 to 3 together. Shares of D1 to
D3 in A and B schedule be allotted subject to
payment of Court fee.
(3) Considering the extent involved there
will not be any direction for any of the parties
to give mesne profits.
(4) Parties are at liberty to apply for
final decree.
(5) Partition of C schedule is not allowed.
M.N. KRISHNAN, JUDGE.
ul/-
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M.N. KRISHNAN, J.
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A.S. No. 181 OF 2000
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J U D G M E N T
23rd June, 2010.