IN THE HIGH COURT OF KERALA AT ERNAKULAM
AS.No. 700 of 1997(E)
1. SOBHA
... Petitioner
Vs
1. KUNHIKKALI
... Respondent
For Petitioner :SRI.TKM.UNNITHAN
For Respondent :SRI.K.S.BABU
The Hon'ble MR. Justice PIUS C.KURIAKOSE
The Hon'ble MR. Justice C.K.ABDUL REHIM
Dated :11/03/2010
O R D E R
PIUS C. KURIAKOSE & C.K. ABDUL REHIM, JJ.
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AS. Nos. 700 of 1997 & 187 of 1998
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Dated this the 11th day of March, 2010
J U D G M E N T
Pius C. Kuriakose, J.
A.S. No.700/1997 is preferred by defendants 1 to 4
and A.S.No.187/1998 is preferred by defendants 5 to 7.
The suit was for partition, and for convenience we will be
referring to the parties by their ranks before the trial court.
The suit was filed by the original plaintiff, one
Smt.Kunhikkali seeking partition and allotment of her 1/5
share in the plaint schedule properties which are 5 in
number. The suit was filed on the premise that the
properties belonged to her only son Sekharan, who died in
testate. The 1st defendant Sobha is the widow of late
Sekharan and defendants 2 to 4, all of them then minors,
are the 3 daughters of late Sekharan. Defendants Nos.5 to
7 purchased properties described as item Nos.2 to 4 during
the pendency of the suit from the 1st defendant and they
AS.700/97 & 187/98
– 2 –
were impleaded on the basis of such purchase. Additional
plaintiff No.2 got himself impleaded on the basis of purchase
of the 1/5 fractional interest claimed over the property by
the original plaintiff Smt.Kunhikkali.
2. The 1st defendant on her personal behalf as well as
on behalf of minor children D2 to 4 filed a written
statement. In the very first paragraph of the written
statement it is contended that late Sekharan had on
24.10.1991 executed a will in respect of his properties in the
presence of witnesses. It is also contended that provision
has been made in the above will as to how properties of
Sekharan should be divided. It is alleged that the plaintiff
who is aware of the existence of the will has filed the suit
deliberately suppressing the same. As regards item Nos.3
and 5 of the plaint schedule, it is contended that those items
are not partible since the 1st defendant alone is in
possession of the property having advanced the entire
consideration for purchase of those two items. The written
AS.700/97 & 187/98
– 3 –
statement raises other contentions also. The learned
Subordinate Judge formulated the following issues for trial:
“1). Are not the plaint schedule properties
partible?
2). Whether the plaintiffs are not entitled to
get 1/5 share in the plaint schedule
properties?
3). Whether the plaintiffs are entitled to get a
decree as prayed for?
4). Reliefs and Costs? ”
At trial the evidence on the side of the plaintiff consisted of
Exts.A1 to A7 apart from the oral testimony given by PW1
the daughter of the plaintiff, who was also power of attorney
holder for the plaintiff. On the side of the defendants the
same consisted on Exts.B1 to B6(b) and the oral testimonies
of DW1, the 1st defendant and DW2 to 5. DW5 was the 6th
defendant himself. Reports filed by the Advocate
Commissioners appointed by the court were marked as
Exts.C1 to C3. At the stage of evidence the contention
which was pursued by the main contesting 1st defendant
AS.700/97 & 187/98
– 4 –
was that succession to the estate of Sekharan was
testamentary. Ext.B1 was the will dt. 25.10.1991. DW2
Preman who is the direct brother of DW1 Sobha was
examined to prove that B1 will was written by him as
instructed by deceased Sekharan. DW3 is the brother-in-
law of DW2 and he was examined to prove that he attested
the will and that the will was executed by late Sekharan.
DW4 Karuppan who is the brother-in-law (elder sister’s
husband) of DW1 Sobha, was another attester to B1 and he
was examined to prove the due execution and attestation of
B1. DW5 was examined to prove his case that he is a
bonafide purchaser for value. The learned Sub Judge came
to the conclusion on evaluating the evidence that Ext.B1 will
was shrouded in several suspicious circumstances.
According to the learned Sub Judge DW1 the propounder of
the will was totally unsuccessful in removing those
circumstances and proving Ext.B1 to be a genuine will. In
that view of the matter and relying on the documents
AS.700/97 & 187/98
– 5 –
relating to title, it was found by the court below that the
properties are partible. Dealing with Exts.B2 and B5 the
learned Sub Judge noticed that those documents are
executed in respect of portions of the plaint schedule
property during the pendency of the suit and only D1 who
is entitled to only 1/5 share has executed the same. The
court below found that the document in favour of D5, D6
and D7 will not bind the plaintiffs and the other co-owners.
On the basis of such findings the learned Subordinate Judge
held that a preliminary decree for partition was liable to be
passed and accordingly passed a preliminary decree
directing division of the plaint schedule property into 5
equal shares and allotment of one such share to the 1st
plaintiff and recognising the assignment by the 1st plaintiff in
favour of the 2nd plaintiff it was held that the above share
should be allotted to the additional plaintiff. Share of
income from the date of suit was also allowed to be
recovered by the 2nd additional plaintiff. But the quantum of
AS.700/97 & 187/98
– 6 –
income was left upon to be decided at the final decree
proceedings.
3. In the appeal preferred by defendants 1 to 4 in
A.S.No.700/97 various grounds have been raised assailing
the findings of the learned Subordinate Judge regarding the
genuineness of Ext.B1 will whereas in A.S.No.187/98
though it is also urged that the will is a genuine one and
that properties are not partible what is ultimately urged is
that equitable relief should be granted to the appellants
therein along item Nos.2 to 4 purchased by them towards
the share of defendants Nos.1 to 4. Very extensive
submissions were addressed before us by the learned
counsel appearing for the parties particularly Sri.T.K.M
Unnithan, learned counsel for the appellant in
A.S.No.700/97 and Smt.Sudha Babu, learned counsel for
the 2nd respondent in that appeal. Sri.T.K.M.Unnithan
submitted that the so called suspicious circumstances
highlighted by the learned Subordinate Judge under the
AS.700/97 & 187/98
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impugned judgment are not really suspicious circumstances.
They are all circumstances which are clearly explicable. Mr.
Unnithan further submitted that these circumstances are not
brought out in the evidence. According to Mr. Unnithan the
evidence adduced by DWs 1 to 4 was quite convincing as
regards execution of the Will by Sri. Sekharan. The court
below’s conclusion that the Will is not genuine was based on
surmises. Mr. Unnithan highlighted that the mother, the
plaintiff did not enter the box. Instead, she authorised her
daughter to give evidence on her behalf. The circumstance
that the mother was not prepared to give evidence herself,
is a circumstance which will justify drawal of adverse
inference against the mother, the plaintiff. The mother was
set up by the sister of the deceased and others and it is
very clear from the evidence of PW-1 who came as a
substitute for her mother. Sri.TKM Unnithan relied on a
number of judicial precedents in support of his argument
that the plaintiff was unsuccessful in proving that the Will in
AS.700/97 & 187/98
– 8 –
question was shrouded in suspicious circumstances. He
referred to the judgment of the Supreme Court in Brij
Mohan Lal v. Girdhari Lal, AIR 1978 SC 1202, and argued
by referring to paragraphs 3, 9 and also paragraphs 2 to 12
generally that the evidence adduced in the case on the side
of the defendants was more than sufficient to dispel the so-
called suspicious circumstances. Mr. Unnithan referred to
Section 63 of the Indian Succession Act and also to Section
68 of the Indian Evidence Act and submitted on the
authority of the judgment of the Supreme Court in
B.Venkatamuni v. C.J.Ayodhya Ram Singh & ors. (AIR 2007
SC 311) that proof of the Will in terms of the above sections
has been given in this case by the propounders. Mr.
Unnithan also referred to the judgment of the Supreme
Court in Madhukar D.Shende v. Tarabai Aba Shedage, AIR
2002 SC 637 that the Law of Evidence does not permit
conjuncture or suspicion having the place of legal proof nor
permit them to demolish a fact otherwise proved by legal
AS.700/97 & 187/98
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and convincing evidence. It is only well founded suspicion
which can be a ground for close scrutiny of evidence, but
suspicion alone cannot form the foundation of a judicial
verdict. Mr. Unnithan also argued that it is not the
requirement of law that a doctor should be available at the
time of execution of a Will for certifying the testamentary
capacity of the testator. Mr. Unnithan also referred to the
judgment of the Supreme Court in Apoline D’Souza v. John
D’Souza, AIR 2007 SC 2219.
4. All the submissions of Mr. Unnithan were stiffly
resisted by Smt.Sudha Babu, counsel for the contesting
respondent. She would draw our attention to various
aspects of the evidence adduced in the case and support the
impugned judgment. According to her, the Will in question
is shrouded in a number of suspicious circumstances and
the propounders of the Will were unsuccessful in removing
the suspicion. Smt. Sudha fortified her submissions by the
authority of various decisions. She referred to the judgment
AS.700/97 & 187/98
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of the Supreme Court in H.Venkatachala Iyengar v.
B.N.Thimmajamma and others, AIR 1959 SC 443 and to the
judgment of the Supreme Court in Babu Singh v. Ram
Sahai, AIR 2008 SC 2485. She also referrd to the judgment
of the Supreme Court in Kalyan Singh v. Chhoti, AIR 1990
SC 396 in support of the various propositions canvassed by
her.
5. Sri.K.P.Dandapani, learned counsel for the
appellants in AS. 187 of 1998 would assail the impugned
judgment on the various grounds raised in the
memorandum of appeal. According to him, on the basis of
the evidence it should have been concluded that the Will is a
genuine one. Even though Mr. Dandapani assailed the
impugned judgment and the finding therein regarding
genuineness of the Will, his ultimate submission was that
equitable relief be granted to his clients who were additional
defendants 5 to 7 and plaint item Nos. 2, 3, and 4 be set
apart to the share of those who assigned those properties to
AS.700/97 & 187/98
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his clients. Mr.Dandapani also submitted that the
contesting respondent, the additional plaintiff himself is
assignee pendente lite is not entitled to any privilege over
any of the properties. According to him, the appellants are
transferees from co-owners. Even if the Will is found to be
not genuine and the transfer being from co-owners, they
are co-owners along with the remaining co-owners and are
entitled to claim exclusive right over the properties
purchased by them and possessed by them in so far as the
same is within the respective share of their assignors.
6. We have very anxiously considered the rival
submissions addressed at the Bar. We have made a
thorough reappraisal of the entire evidence adduced in the
case and the pleadings raised by the parties. According to
us, the contesting defendants, the appellants in AS. 700/97
failed miserably in establishing that Ext.B1 Will propounded
by them was a genuine Will, duly executed by Sekharan the
testator. Before we proceed to examine the correctness of
AS.700/97 & 187/98
– 12 –
the findings entered by the learned Subordinate Judge with
reference to the evidence adduced in the case, we will refer
to the specific pleading raised by the contesting defendants
as regards Ext.B1 Will which significantly is not produced
along with the written statement which was filed as early as
on 2nd March, 1993. The Will is produced only on 5th July
1997 and the explanation offered by the contesting
defendant in IA. No. 2656/97 for the late production of the
Will is that the Will was shown to the Advocate at the time
when the written statement was prepared and that Advocate
returned the Will to the defendant saying that the same
need be produced only at a later stage ad that when the
Advocate’s instructions came for production of the Will, the
Will could not be traced. We will atonce observe that the
explanation offered by the contesting defendants for the late
production of the Will does not inspire any confidence in our
mind. In fact the inordinate delay in producing the Will, the
one document on the basis of which the plaintiff was sought
AS.700/97 & 187/98
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to be non-suited is a circumstance which gives strong
support to the contention of the plaintiff that the Will has
been fabricated actually after the written statement was
filed in the case. There is yet another strong circumstance
which supports the conclusion that Ext.B1 Will though
conceived by its beneficiaries earlier was actually brought
into existence only after the written statement dated
02/03/93 was filed in court. It is in paragraph 1 of the above
written statement that reference is made to Ext.B1 Will.
Translated to English, what is stated therein is as follows:-
“Deceased Shekaran has on 24/10/91
executed a Will in respect of his properties in the
presence of witnesses. In that Will it is provided
as to the manner in which Shekaran’s properties
should be divided.”
A reading of Ext.B1 will show that the disposition under the
same is a bequest of all the movable and immovable assets
of the testator Shekaran including the terminal benefits
which will be due to him from his employers and the Bank
deposits in his name in favour of his wife Sobhana alone. In
AS.700/97 & 187/98
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other words, Smt.Sobhana, the wife is the sole and
universal legatee to the assets and estates of the testator. If
as a matter of fact, the written statement was filed with
reference to Ext.B1 and on the basis of Ext.B1 as contended
there was no scope for a contention in the written statement
to the effect that Shekaran’s Will contains provision
regarding the manner in which the assets left behind by
Shekaran are to be divided (partitioned)after his demise.
7. Sri.Shekaran had three daughters. All of them were
minors at the time when Ext.B1 was allegedly executed.
They along with the original plaintiff Shekaran’s mother
were also Shekaran’s legal heirs under the Hindu Succession
Act which would have governed the succession to
Shekaran’s estate. Surprisingly no provision is made in
Ext.B1 even for the three minor daughters. One would
expect the Will to contain some statement in the Will as to
why the testator is disinheriting all his daughters and
bequeathing the entirety of his estate in favour of his wife
AS.700/97 & 187/98
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who at that time was aged only 38 years. This again is a
circumstance which probabilises the version of the
contesting respondents that the Will is not a genuine one
but is a concoction brought into existence long after the
deceased breathed his last.
8. Ext.B1 Will is allegedly executed on 24/10/91 while
Sri.Shekaran, the testator was admitted in the emergency
post operative care ward of the Medical College Hospital at
Trichur. The health condition of Sri.Shekaran who was
suffering from colon/Pancreas cancer at a terminal stage
having already undergone two unsuccessful major surgeries
in succession was evidently precarious. Significantly,
Sri.Shekaran died on the very next day and it is not difficult
to assume having regard to the nature of the disease which
Sri.Shekaran was suffering from, that at the time of alleged
execution of the Will. Sri.Shekaran must have been
suffering from excruciating pain. We will immediately
observe that the story that Sri.Shekaran executed Ext.B1
AS.700/97 & 187/98
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out of his own volition with perfect testamentary capacity
while being admitted in the post operative care emergency
ward of the Medical College Hospital is implicitly incredible.
The learned Subordinate Judge under the impugned
judgment has referred to various circumstances which cast
natural clouds of suspicion on Ext.B1 Will. The question is
whether the propounders of the Will were able to remove
those clouds by the evidence that they adduced for proving
the due execution and attestations of the Will. We are in
complete agreement with the finding entered by the learned
Subordinate Judge in the context of the issue regarding the
genuineness of the Will and its alleged execution and
attestation. The oral evidence adduced by the witnesses
DWs.1 to 4 cannot inspire any confidence in the mind of any
conscientious court searching for truth.
9. DW1 is the sole legatee under Ext.B1. Her version in
cross examination is that she was keeping custody of the
Will. He first version in cross examination is that till the Will
AS.700/97 & 187/98
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was produced in the Court she was keeping custody of the
same. Later she would say that at the commencement of
the litigation she entrusted the Will with the Advocate and
that she has never taken it back from the Advocate. When
she is confronted with her own averment in the affidavit in
support of the I.A for production of the Will, as regards the
return of the Will by the lawyer to her and also as regards
the un-traceability of the Will when the lawyer gave
instructions for production, her response is mere silence.
10. DW2 Preman the alleged scribe of the Will is none
other than the brother of DW1 Sobhana. He is on his own
admission a novice in the art of Will writing or for that
matter writing of any document whatsoever. Importantly,
neither the name nor the signature of Sri.Preman DW1
appears on Ext.B1. B1 is completely silent as to the identity
of the scribe under whose handwriting the same is written.
Ext.B1 runs to two pages. On the first page name of
Shekaran is written and against that a signature which is
AS.700/97 & 187/98
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alleged to be that of Shekaran is also seen put. But on the
last page significantly, Shekaran’s signature is seen put not
against his name but after the signature of the two attesting
witnesses. DW2 Preman was employed in a Gulf country and
was on a short visit to Trichur at the time when Ext.B1 was
allegedly written by him to the dictation of his deceased
brother-in-law Shekaran. When DW2 is asked about the
signature of Shekaran what he says is Shekaran writes his
name and draws a circle above the same. It will be noticed
that Shekaran’s apparent signature on Ext.B1 does not
conform to DW2’s version regarding Shekaran’s signature.
11. DW3 is Jayachandran who was a House Surgeon at
the time of alleged execution of Ext.B1. At that time his
sister was betrothed to DW2 Preman and he refers to DW2
Preman as his brother-in-law, even at the time of alleged
execution of the Will in view of the obvious position that the
marriage between DW3’s sister and Preman stood fixed
already. DW3 is apparently an attester of Ext.B1 and he is
AS.700/97 & 187/98
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examined for proving due execution and attestation of
Ext.B1. His version is to the effect that going by the terms
of the Will which was read over in his presence, the bequest
under the Will was in favour of the wife and children of the
testator Shekaran. He has not witnessed the writing down
of the Will by his brother-in-law Preman to the dictation of
the testator Shekaran. He does not know on which day and
at what time the Will was written. At the time when he
signed the Will, nobody else had subscribed his signature to
the same. The testimony of this highly interesting witness
did not inspire the trial court, nor does it inspire us. An
aspect which emerges from the testimony of this witness is
that one Dr.Sasidharan was the chief of the unit which
treated deceased Shekaran and that a Surgeon then
attached to the Medical College Hospital conducted surgery
on Sri.Shekaran. We are of the view that the most
competent persons to swear as to the testamentary capacity
of deceased Shekaran on 24/10/91 were either of these
AS.700/97 & 187/98
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Doctors and not DW3.
12. DW4 Karappan is the other attesting witness to
Ext.B1. He again is the direct brother-in-law of DW1
Sobhana the sole legatee under Ext.B1. A scrutiny of his
cross examination will show that he is perhaps more
interested in DW1 than DW2 her own brother. His version
also did not rightly inspire confidence in the mind of the
learned Subordinate Judge.
13. There are other excellent reasons to support our
conclusions that the version of the plaintiff that Ext.B1 is not
a genuine Will duly executed by deceased Shekaran is much
more probable than the version of the propounders of the
Will. The apparent signatures of Shekaran the testator is
stiffly disputed by the plaintiff. In the wake of this dispute
DW1 produces get herself examined again and proves
Ext.B6 series. Ext.B6 series are interestingly three postal
covers in which deceased Shekaran while abroad had sent
her letters. On these three covers the name of Shekaran is
AS.700/97 & 187/98
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written. It is perhaps to prove the similarity in the name of
Shekaran written in Ext.B1 with the names written on these
covers that the covers were produced. But in cross
examination it has come out that a few letters written by
her husband are actually available in her house. We are at a
loss to understand why DW1 did not become prepared to
produce the letters written by her husband. We feel that
there is justification for drawal of adverse inference against
DW1 due to non-production of the letters of her husband
which are admittedly kept by her in her house. Even
otherwise Sri.Shekaran was employed overseas for quite a
long period of time. If as a matter of fact DW1 wanted to
prove the apparent signatures of Shekaran on Ext.B1 to be
his genuine signatures she could have done so without
much difficulty.
14. As already indicated, we have made a thorough re-
appraisal of the entire evidence adduced in this case. The
testimonies of DWs.1 to 4 by whom due execution and
AS.700/97 & 187/98
– 22 –
attestation of Ext.B1 is sought to be established by DW1 the
propounder of the Will contradict with each other in material
particulars. Their versions are not capable of removing the
clouds of suspicion which naturally shroud Ext.B1 will. The
judgment of the Supreme Court in H.Venkatachala Iyengar
v. B.N.Thimmajamma & ors. (AIR 1959 SC 443) continues
to be a leading light regarding the nature of the evidence
required to prove a will in dispute. It is the duty of the
propounder of the Will to satisfy the court by adducing
quality evidence that the Will in dispute had been validly
executed by the testator. We are of the considered view that
in the instant case the propounder of the Will DW1 failed
miserably in discharging that duty.
15. Now we shall come to the plea of equitable relief
made by the appellants in AS No.187/98 the appeal filed by
Sri.K.P.Dandapani. The trial court repelled their plea of
equitable relief on the reason that they who were
defendants 5 to 7 purchased the properties from the first
AS.700/97 & 187/98
– 23 –
defendant alone and that too after filing of the suit. The
learned Subordinate Judge obviously had in his mind
Section 52 of the Transfer of Properties Act as well as the
principle that one co-sharer is not entitled to deal with co-
ownership property in a manner as to prejudice the other
co-sharers. Ordinarily, we would have approved the above
decision of the learned Subordinate Judge straight away.
But there is some evidence in this case to find that the
proceeds of the sale in favour of defendants 5 to 7 the
appellants in that appeal were utilised by DW1 for meeting a
very genuine family necessity – the treatment of one of her
daughters for cardiac diseases. It is also noticed by us that
DW1 did not re-marry and remained a dutiful mother
looking after her daughters properly. None of the daughters
have come forward so far to challenge the assignment by
DW1 in favour of the appellants in AS.187/98. Noticing all
these aspects even as we confirm the preliminary decree for
partition passed by the court below, we direct that as far as
AS.700/97 & 187/98
– 24 –
possible the property covered by the assignment deed in
their favour will be set apart to the shares of respondent
Nos.3 to 6 in As.187/98.
16. The result of the above discussion is therefore, as
follows:-
A.S. No.700/97 is dismissed. A.S. No.187/98 is allowed
to the limited extent of directing that to the extent possible
while effecting partition the properties covered by the
assignment deed in favour of the appellants be allotted to
the shares of respondent Nos.3 to 6 in the appeal. Despite
our findings that Ext.B1 Will is a concoction and is not a
genuine one, we direct the parties to suffer their costs
throughout.
PIUS C.KURIAKOSE, JUDGE
C.K. ABDUL REHIM, JUDGE
ksv/-
AS.700/97 & 187/98
– 25 –
PIUS C.KURIAKOSE &
C.K. ABDUL REHIM, JJ
AS. Nos. 700/97 & 187/98
JUDGMENT
11th March, 2010