IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA.No. 575 of 1996(5)
1. SADANANDAN
... Petitioner
Vs
1. BHASKARAN
... Respondent
For Petitioner :SRI.P.V.JYOTHI PRASAD
For Respondent :SRI.M.C.SEN (SR.)
The Hon'ble MR. Justice HARUN-UL-RASHID
Dated :09/09/2010
O R D E R
HARUN-UL-RASHID, J.
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S.A.No.575 Of 1996
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Dated this the 9th day of September, 2010.
J U D G M E N T
The defendant in O.S.No.489 of 1977 of the Principal
Munsiff Court, Kozhikode II, is the appellant. The appeal is
directed against the judgment and decree dated 11.8.1995 in
A.S.No.74 of 1989. Suit was filed for recovery of possession on
the strength of plaintiff’s title and also for consequential
injunction. The trial court held that Ext.B1 is a validly executed
will, that the defendant has discharged the burden of proving the
will and that the plaintiff therefore has no right over the plaint
schedule properties. The trial court dismissed the suit. The
lower appellate court reversed the findings of the trial court and
passed a decree as prayed for in the plaint. Parties hereinafter
are referred to as the plaintiff and defendant as arrayed in the
suit.
2. The plaint schedule properties belong to Sri.Kandar.
Plaintiff is the mother of Kandar. Kandar died on 13.10.1977
The plaintiff’s case is that after the death of Kandar being the
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sole legal heir, plaint schedule properties devolved upon her. It
is alleged in the plaint that the defendant had trespassed into the
house and started residing in the house with his wife and
children, that the defendant has no right in the property and
therefore the plaintiff is entitled to recover possession of plaint B
schedule property and also for perpetual injunction restraining
him from trespassing into plaint A schedule property.
3. In the written statement, the defendant inter alia
contented that the plaintiff has never obtained any right in plaint
A schedule properties, that Kandar has executed a will with
respect to the plaint schedule properties on 15.7.1977, that the
plaint schedule properties were bequeathed to the defendant by
the deceased Kandar and thus the defendant has obtained right
over the plaint schedule properties on the death of Kandar. The
defendant also denied the averment in the plaint that the plaintiff
has been in possession and enjoyment of the plaint schedule
properties. It is also pleaded that the plaintiff, for the last 15
years before the death of Kandar, has been residing with her
daughter. The defendant also denied the averment that he has
trespassed into plaint B schedule properties. It is further stated
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that the plaintiff has filed a complaint before the police and
influencing the police she had made the defendant to hand over
the documents with respect to the properties to the plaintiff.
4. Pending suit, the plaintiff died and her only daughter
was impleaded as the additional second plaintiff. The additional
second plaintiff also died pending suit and her legal heirs were
impleaded as additional plaintiffs 3 to 10. Parties adduced
evidence in support of their respective contentions. The evidence
consists of oral evidence of PW1, DWs 1 to 3 and documentary
evidence of Exts.A1-A7 and B1 to B28.
5. Plaint A schedule is the property and B schedule is the
building situated in A schedule property. Admittedly, the
property belong to Kandar. Kandar died without wife and
children. It has come out in evidence that he obtained divorce
more than 20 years before his death. The deceased 1st plaintiff is
the mother of Kandar. The sole defendant is the son of Kandar’s
brother, namely, Raman. Raman is the son of deceased first
plaintiff’s husband through his first wife. The 1st plaintiff, mother
of Kandar claims right in the property as the sole legal heir of
deceased Kandar. The defendant claims right over the property
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on the strength of a will alleged to have been executed by
deceased Kandar. Ext.B1 is the will.
6. The trial court examined the question as to whether
Ext.B1 is a document executed by Kandar. DWs 2 & 3 were
examined to prove Ext.B1 will. These two witnesses are the
attestors to Ext.B1 will. Both witnesses deposed before the court
that they signed as a witness in Ext.B1 will, that deceased Kandar
had put his signature in Ext.B1 will in their presence and that the
deceased Kandar and DWs 2 & 3 put their signatures in the
presence of each other.
7. It is an admitted case that deceased Kandar was a
carpenter. The defendant as DW1 has testified before the court
that his father died while he was in the mother’s womb, that he
was looked after by deceased Kandar from his childhood, that
Kandar acted as his guardian, that in the school register Kandar’s
name was entered as the guardian, that Kandar met the
educational expenses and after his studies he worked as a
carpenter under Kandar, that he is the sole male member of his
family, that his grandfather Kuttysankaran had three male
children by name Kandar, his father Raman and Manukuttan, that
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Manukuttan was an unmarried person, that Manukuttan lived as a
bachelor and that he is the sole surviving male member in the
family. He further testified that since his father died even before
his birth he was under the care and protection of Kandar. He
also testified that Kandar treated him like his own son, that
Kandar and his mother lived apart, that there was property
dispute between them for the last 25 years and that Kandar lived
separately from his mother all along. He also testified that he
lived with Kandar in his house on several occasions.
8. Plaint is silent about the will. The deceased first
plaintiff pleaded that she is the sole legal successor of the
deceased Kandar, that the defendant had trespassed into plaint B
schedule building and therefore she filed the suit for recovery of
possession on the strength of plaintiff’s title and for consequential
injunction. In the written statement the defendant contented
that the plaintiffs have not manner of right, title or interest in the
plaint schedule property, that the deceased Kandar executed the
will and therefore he is the absolute owner of the plaint schedule
properties. The written statement contains detailed averments
regarding the execution of the will. Plaintiff did not file any
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replication traversing the averments in the written statement
regarding the execution of the will or denied the existence of the
will or its execution. The plaintiff failed to file replication nor did
she filed any petition for amendment of the plaint inserting
necessary averments denying the execution of the will. In effect,
there is no pleading at all on the part of the plaintiff neither
denying the execution of the will or pleading regarding any
suspicious circumstances leading to the execution of the will nor
the plaintiff has a case that the will was executed at the instance
of the defendant who had practised fraud, undue influence etc.
9. Additional 5th plaintiff who is the grandson of the
deceased first plaintiff was examined as PW1. He testified that
the deceased first plaintiff was residing permanently along with
his mother Lakshmi, who is the additional second plaintiff. He
also testified that the deceased first plaintiff started permanent
residence with his mother 15 years before the death of Kandar.
Thus he corroborates the evidence tendered by DW1 that
deceased first plaintiff was not residing with Kandar for the last
so many years. DW1 testified that there was no occasion for the
deceased first plaintiff even to meet or talk with Kandar for more
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than 15 years.
10. Ext.B5 is the deposition of the deceased first plaintiff.
She lodged a complaint against the defendant and two others
before the Court of Judicial First Class Magistrate-II, Kozhikode.
The two others are defendant’s mother and wife. Ext.B5
deposition is in connection with the above said complaint. The
complaint is in respect of the property dispute which immediately
arose after the death of Kandar. The complaint is that the
defendant and other accused trespassed into the plaint schedule
property and reduced the same into their possession. She
testified in Ext.B5 that she did not went to Kandar’s house to pay
homage to deceased Kandar. She testified that she did not went
to his house on his death nor had occasion to see his dead body.
She testified that the defendant had met the expenses in
connection with the death of Kandar and that she is residing
along with her daughter for the last three years.
11. The evidence tendered by PW1, DW1 and Ext.B5
deposition of deceased first plaintiff would prove the strange
relationship between the deceased Kandar and his mother. The
evidence of PW1 and DW1 would show that the deceased mother
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had no occasion to reside with his son at least for a period of 15
years prior to the death of Kandar. At the same time, the
evidence tendered by DW1 would go to show that his father died
while he was in his mother’s womb that he is the only surviving
male member in the family after Kandar. It has also come out in
evidence that the deceased Kandar looked after him as his own
son and provided him with education, care and protection. The
evidence also reveals that after his schooling the defendant
worked with deceased Kandar as carpenter for many years and
he was looked after by the deceased Kandar.
12. The trial court appreciated the above said
circumstances. The trial court also believed the evidence of DWs
2 & 3 who are the attesting witnesses. On that basis the trial
court held that the aforesaid circumstances along with the
evidence of DWs 2 & 3 lead only to the presumption that
Ext.B1will was executed by deceased Kandar. The trial court also
observed that the case pleaded in the plaint that the deceased
first plaintiff was residing along with Kandar in plaint B schedule
house is proved to be a false version in the light of the testimony
of additional 5th plaintiff as PW1 who testified that the deceased
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first plaintiff was residing with her daughter for more than 15
years before the death of Kandar. The trial court also discussed
the circumstances leading to the filing of the criminal complaint
against the defendant. The trial court also observed that in
Ext.B5 deposition the deceased first plaintiff in chief examination
deposed that she was residing with Kandar in the house at the
time of his death. But in cross-examination she deposed that
when she knew about the death of her son she went to tarawad
house and not to Kandar’s house. The trial court also noted the
testimony in Ext.B5 stating that she was residing along with her
daughter for the last three years. The trial court observed that
the version of the first plaintiff before the criminal court is
contradictory in several respects and it is contrary to the
averments in the plaint and that the evidence shows that she has
not resided along with Kandar during the time of his death. The
trial court also on evidence found that the first defendant had
incurred the necessary expenditure on the death of Kandar. The
trial court also noted the contradiction in the testimony of PW1
regarding the meeting of expenses for the ceremonies in
connection with the death of Kandar. The plaintiffs’ stand was
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that the defendant had nothing to do with Kandar and the
expenses for the ceremonies after the death of Kandar was met
by them. In cross-examination PW1 testified that the defendant
used to come to the house of Kandar after the death of Kandar
and that he has met the expenses for the ceremonies. The trial
court also relied on the evidence of the defendant that even while
he was a small child he was looked after by Kandar. He was sent
to school by Kandar. He was doing the work of carpentry with
Kandar. It has also come out in evidence that though the
defendant started to live separately along with his wife and
children, eight months before the death of Kandar he started to
reside with Kandar as requested by Kandar.
13. The defendant as DW1 testified that the deceased
Kandar before his death handed over Ext.B1 will and all the
records including the title documents to the defendant, that first
plaintiff made a criminal complaint before the police alleging
trespass, that the police had forced him to hand over the
documents to the plaintiff in the police station. The trial court
also noted that it is proved by Ext.B2 that the documents with
respect to the property were handed over to the first plaintiff by
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the defendant in the presence of police. The details of the
documents handed over were also given in Ext.B2. The trial
court observed that it is apparent by Ext.B2 that the documents
produced by the plaintiffs were handed over by the defendant
from the police station. The trial court also observed that the
plaintiffs have not stated anything as to how the documents
came to be in the possession of the defendant and under what
circumstances they were handed over to them from the police
station. DW1 testified before the court that he handed over all
the documents except the will and the purchase certificate under
compulsion from the police authorities. He also testified that he
has not handed over the will due to apprehension that it will be
destroyed. The trial court observed that the said explanation
seems a reasonable and acceptable explanation and is more
probable because he has kept the purchase certificate also with
him. Ext.B4 is the purchase certificate produced by the
defendant. Ext.B3 is the receipt issued by the plaintiff at the
police station itself on her receiving Rs.445/- from the defendant.
The amount mentioned in Ext.B3 receipt is said to be the balance
amount belonging to Kandar available in the house.
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14. The requirement of onus of proof of will is on the
propounder of the will is well settled. No doubt, it is for the
propounder to prove the will. The burden of proof lies with the
party affirming the execution of the will. In order to prove due
execution of the will, the propounder has to prove that the
testator has signed the will in the presence of two witnesses and
that they signed the documents in the presence of the testator.
In this case the execution of the will was proved by defendants 2
& 3. They have testified before the court that the testator has
signed the will in the presence of DWs 2 & 3 and they themselves
signed in the presence of the testator.
15. Once it is proved that the will has been executed by
the executant in the presence of two witnesses and they have
signed in the presence of each other and the executor has got
testamentary capacity, the burden of proof shifts on the persons
who alleged that the will is a forged one or was executed due to
practice of fraud, undue influence etc. Ext.B1 will is the
document. It is proved that Ext.B1 is a document properly
authenticated, recorded and signed in the presence of witnesses.
Therefore it can be presumed that it was properly executed.
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16. I have already discussed the pleadings in the written
statement regarding the execution of the will. I have also stated
that the plaintiff has neither cared to file a replication either
denying the execution of the will or alleging suspicious
circumstances surrounding the execution of the will or alleging
that the testator has no testamentary capacity to execute the
will. There is no pleading in the plaint nor the plaintiff cared to
amend the pleadings after the filing of the written statement
inserting necessary averments denying the execution of the will
and alleging suspicious circumstances surrounding the execution
of the will. In effect, it is a case where there is no pleading at all
on the part of the plaintiff regarding the denial of execution,
alleging suspicious circumstances or about the testamentary
capacity of the testator.
17. The learned counsel for the appellant/defendant
brought to the notice of this Court the decisions of the Apex
Court reported in Savithri v. Karthyayani Amma [2007(4) KLT
811 (SC)], Ramabai Padmakar Patil (dead) by LRs and
others v. Rukminibai Vishny Vekhande and Others (AIR
2003 SC 3109) and the decision of the Division Bench of this
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Court in Joseph v. Ippunni (2007(4) KLT 853) and George v.
Varkey (2004(1) KLT 21). In all the aforesaid decisions, the
principle stated in the preceding paragraphs are laid down. The
learned counsel also brought to the notice of this Court the
decisions reported in Baby v. Sebastian (2007(3) KLT 885),
Sunil and Vasanth Architects and Consulting Engineers
and another v. Tata Ceramics Ltd. (AIR 1999 Kerala 88),
Kannan and others v. Chirudu and others (AIR 1960 Kerala
93). In the decision reported in Baby’s case (supra) this Court
observed that the practice of filing of replications by way of
answering defendants’ pleas in their written statements and of
filing of rejoinder by defendants by way of answer to the
contentions raised by the plaintiffs through their replications is in
vogue in various parts of the State. It was also held that in
common law pleading also, the word “replication” is in usage and
the same means reply made to the defendant’s plea or answer.
In the light of the contentions raised by the defendant in the
written statement as regards the execution of Ext.B1 will, the
plaintiff ought to have filed replication or ought to have amended
the plaint inserting necessary averments either denying the
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execution of the will or pleading suspicious circumstances
surrounding the execution of the will. I have gone through the
evidence of PW1. Even in chief examination also he has not
testified any suspicious circumstances leading to the execution of
the will. Only a stray sentence stated in chief examination that
“it is not correct to say that Kandar has executed the will in
favour of the first defendant and that no such will was executed”.
18. Learned counsel for the respondent/plaintiff brought to
the attention of this Court the decision reported in
H.Venkatachala Iyengar v. B.N.Thimmajamma and others (AIR
1959 SC 443). The said decision also deals with the proof of will
and the burden of proof which is the basic decision which was
followed by the Apex Court and High Courts in all the later
decisions. The decisions reported in K.Laxmanan v. Thekkayil
Padmini and others (2009(1) SCC 354) and Girijanandini
Devi and others v. Bijendra Narain Choudhary ((AIR 1967
SC 1124) also deals with the onus of proof and manner of
proving the will.
19. The trial court discussed and appreciated the evidence
on record in detail and arrived at the conclusion that Ext.B1 is
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proved to be validly executed will. The court also held that the
defendant has discharged his burden of proving the will and
therefore held that the plaintiff is not entitled to any relief.
20. The lower appellate court disbelieved the evidence of
Dws 2 & 3 and observed that their evidence appears to be quite
unnatural and improbable. The lower appellate court negatived
the findings of the trial court after disbelieving the evidence
tendered by DWs 1 to 3. I do not find that the lower appellate
court is justified in reversing the findings of the trial court. This
is a case where the plaintiffs have not pleaded anything against
the execution of the will. They have failed to prove any
suspicious circumstances surrounding the execution of the will.
In effect there is neither pleading or proof regarding non-
execution of the will nor about the suspicious circumstances
surrounding the execution of the will. This is a case where the
execution of the will was proved by citing witnesses and the
defendant has also proved that the will was executed by
deceased Kandar in the normal circumstances. The evidence
tendered by DW1 is in no way discredited during his cross-
examination as well. The evidence tendered by the defendant,
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his witnesses, the documents produced and the circumstances
strengthens the execution of the will by deceased Kandar. The
trial court has considered all the materials on record in detail and
arrived at the right conclusion. The reasons stated by the trial
court are negatived by the lower appellate court on an irrelevant
consideration of the evidence and circumstances and by non-
consideration of relevant facts. The lower appellate court
reversed the findings of facts arrived at by the trial court by
ignoring the vital documents. There is no justification for the
lower appellate court not to accept reasonable findings entered
by the trial court. The findings of the lower appellate court are
not based on proved facts or evidence and I find that the
conclusion arrived at by the lower appellate court is not justified
on facts and evidence. The lower appellate court also overlooked
the oral and documentary evidence and its bearing on the rights
of the parties. In the circumstances, this Court is of the view
that the judgment and decree passed by the lower appellate
court have to be interfered with.
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In the result, the appeal is allowed, judgment and decree
passed by the lower appellate court is set aside and the decree
and judgment passed by the trial court is restored. No order as
to costs.
HARUN-UL-RASHID,
Judge.
bkn/-