{"id":149549,"date":"2009-02-17T00:00:00","date_gmt":"2009-02-16T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/k-k-surendran-vs-k-k-balakrishnan-on-17-february-2009"},"modified":"2016-03-04T00:06:09","modified_gmt":"2016-03-03T18:36:09","slug":"k-k-surendran-vs-k-k-balakrishnan-on-17-february-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/k-k-surendran-vs-k-k-balakrishnan-on-17-february-2009","title":{"rendered":"K.K.Surendran vs K.K.Balakrishnan on 17 February, 2009"},"content":{"rendered":"
Kerala High Court<\/div>\n
K.K.Surendran vs K.K.Balakrishnan on 17 February, 2009<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nSA.No. 95 of 2000(C)\n\n\n\n1. K.K.SURENDRAN\n                      ...  Petitioner\n\n                        Vs\n\n1. K.K.BALAKRISHNAN\n                       ...       Respondent\n\n                For Petitioner  :SRI.P.V.KUNHIKRISHNAN\n\n                For Respondent  :SRI.P.V.MADHAVAN NAMBIAR\n\nThe Hon'ble MR. Justice THOMAS P.JOSEPH\n\n Dated :17\/02\/2009\n\n O R D E R\n                          THOMAS P.JOSEPH, J.\n               = = = = = = = = = = = = = = = = = = = = = = = =\n                           S.A. No.95 of 2000\n               = = = = = = = = = = = = = = = = = = = = = = = = =\n              Dated this the 17th      day of February,       2008\n\n                               J U D G M E N T\n<\/pre>\n
                               ———————-\n<\/p>\n
\n     The two sons are fighting over a small plot of land, 33 cents in<\/p>\n
extent which concededly belonged to their mother, late Janu. She got<\/p>\n
that property as per final decree in O.S. No.670 of 1982. She died on<\/p>\n
22.12.1991 leaving behind the appellant and respondent No.1, her<\/p>\n
sons and     respondent No.2 who is the son of her predeceased<\/p>\n
daughter, Padmini (who died on 18.11.1990).                 Smelling that the<\/p>\n
appellant might initiate some proceedings in respect of the suit<\/p>\n
property    respondent No.1 filed a caveat petition in the court of<\/p>\n
learned Additional Munsiff, Kozhikode-II (Ext.A1). Appellant suspected<\/p>\n
that respondent No.1 is claiming right over the entire property as per<\/p>\n
some   documents alleged        to be executed by Janu and filed O.S.<\/p>\n
No.844 of 1992 seeking partition of the suit property and separate<\/p>\n
possession of his share. In the plaint the appellant stated that if at all<\/p>\n
the signature of     Janu is obtained by             respondent No.1 in some<\/p>\n
documents,     Janu was not in a sound disposing state of mind to<\/p>\n
execute any document. Respondent No.1 resisted the suit setting up<\/p>\n
Ext.B2, Will dated 26.12.1990 and registered as document No.109\/90<\/p>\n
at the office of the Sub Registrar, Kozhikode. Respondent No.2 did not<\/p>\n
S.A. No.95 of 2000<\/p>\n
                                  -: 2 :-<\/span><\/p>\n
join sides either with the appellant or respondent No.1 and remained<\/p>\n
absent.     Learned Munsiff found that respondent No.1 was not able to<\/p>\n
remove the cloud of suspicion       surrounding the    due execution of<\/p>\n
Ext.B2, rejected it and      passed preliminary decree for partition.<\/p>\n
Respondent No.1 challenged the preliminary decree in appeal. First<\/p>\n
appellate court found that due execution of Ext.B2 is proved, that is<\/p>\n
the last Will and testament of Janu bequeathing the suit property in<\/p>\n
favour of respondent No.1 and hence the appellant is not entitled to<\/p>\n
partition.   Suit was dismissed. That judgment and decree of the first<\/p>\n
appellate court are under challenge in this appeal at the instance of<\/p>\n
the plaintiff.\n<\/p>\n
      2.      The following substantial questions of law are raised for a<\/p>\n
decision: (1) Whether Ext.B2 Will is reliable or not? and (2) Whether<\/p>\n
the judgment and decree of the lower appellate court based on Ext.B2<\/p>\n
is correct or not?\n<\/p>\n
      3.      It is contended by the learned counsel that the first<\/p>\n
appellate court has reversed a well reasoned judgment of the trial<\/p>\n
court which considered all the relevant aspects.       It is contended by<\/p>\n
learned counsel that the first appellate court has not considered the<\/p>\n
evidence and rather was meeting the challenge made by the appellant<\/p>\n
to the due execution of Ext.B2 based on certain decisions on the point<\/p>\n
S.A. No.95 of 2000<\/p>\n
                                  -: 3 :-<\/span><\/p>\n
which has no relevance on the facts of this case.      Learned counsel<\/p>\n
reiterated that respondent No.1 was not able to remove the suspicion<\/p>\n
surrounding due execution of Ext.B2 and the first appellate court was<\/p>\n
not justified in reversing the judgment and decree of the trial court.<\/p>\n
Learned counsel for respondent No.1 supported the judgment and<\/p>\n
decree of the first appellate court.\n<\/p>\n
      4.      Facts which are not in dispute are that the suit property<\/p>\n
belonged to Janu she having obtained the same as per final decree in<\/p>\n
O.S. No.670 of 1982. She filed E.P. No.477 of 1990 in O.S. No.670 of<\/p>\n
1982 seeking delivery of the property and going by the statement in<\/p>\n
Ext.B1 copy of delivery note dated 15.1.1991 it would appear that<\/p>\n
according to      Janu, appellant had made some obstruction to the<\/p>\n
delivery and hence assistance of police had to be taken for effecting<\/p>\n
delivery. It is while so that Padmini (mother of respondent No.2),<\/p>\n
daughter of Janu died     after prolonged illness on 18.11.1990. A few<\/p>\n
days thereafter Janu was admitted in Asoka hospital, Kozhikode and<\/p>\n
she remained there for a few days. During that time, she executed<\/p>\n
Ext.B2, Will dated 26.11.1990 bequeathing the suit property in favour<\/p>\n
of respondent No.1 and divesting the appellant and respondent No.2<\/p>\n
from inheritance. Appellant examined P.W.1 to prove that Janu was<\/p>\n
not having sound disposing state of mind at the time        Ext.B2 was<\/p>\n
S.A. No.95 of 2000<\/p>\n
                                  -: 4 :-<\/span><\/p>\n
executed and registered on 26.11.1990. Janu is the niece of P.W.1.<\/p>\n
He stated that when Janu was undergoing treatment in Asoka hospital,<\/p>\n
he had been there once and he found Janu in unconscious state.<\/p>\n
On another day he went there and found Janu weeping. Respondent<\/p>\n
No.1 as D.W.1 stated that Janu was taken to the hospital for stomach<\/p>\n
ache and she was mentally and physically in good condition. He<\/p>\n
pleaded ignorance about Janu executing Ext.B2 in the meantime.         In<\/p>\n
the course of cross-examination Ext.B2 was shown to him. He claimed<\/p>\n
that he can identify the handwriting and signature of Janu but he was<\/p>\n
not able to give any opinion about the author of the signature in<\/p>\n
Ext.B2. D.W.2        is the Scribe of Ext.B2.   Frills and embroideries<\/p>\n
excluded, his evidence is that some time before the execution of<\/p>\n
Ext.B2, Janu along with D.W.3 had been to his office and gave him<\/p>\n
instruction to prepare a draft of the Will. He was given the copy of the<\/p>\n
final decree     in (O.S. No.670 of 1982) and on the        basis of that<\/p>\n
document he prepared the schedule of the Will as instructed by Janu.<\/p>\n
Later when Janu met him, the draft of the Will was read over to her.<\/p>\n
Then came Janu along with D.W.3 for execution and the Will was<\/p>\n
executed as seen in Ext.B2 followed by its registration in the Sub<\/p>\n
Registrar’s office. D.W.3 stated that he is the first attesting witness in<\/p>\n
S.A. No.95 of 2000<\/p>\n
                                  -: 5 :-<\/span><\/p>\n
Ext.B2 with one     Raghavan as the second attesting witness (both of<\/p>\n
them figure as identifying witnesses also on the same day). He stated<\/p>\n
that he had been with Janu to the office of D.W.2 for giving instruction<\/p>\n
for preparing the Will and later, he went to that office with Janu for its<\/p>\n
execution. D.W.3 claimed that himself and Raghavan signed Ext.B2 in<\/p>\n
the presence of      Janu and that he saw        Janu signing    Ext.B2.<\/p>\n
Respondent No.1 also produced Ext.B3 to show that on the strength of<\/p>\n
Ext.B2 and after the death of Janu, he has been paying revenue for the<\/p>\n
suit property. Exhibit B4 is the purchase certificate dated 13.10.1976<\/p>\n
issued in respect of the suit property and other items in the name of<\/p>\n
Janu and other co-owners (before the institution of O.S. No.670 of 1982<\/p>\n
for partition).   Exhibit B5 is a medical certificate dated 30.7.1993<\/p>\n
produced by       respondent No.1      to show that he is physically<\/p>\n
handicapped to the extent of 40%.        Exhibit B6 series are copies of<\/p>\n
complaints preferred by respondent No.1 to the police and other<\/p>\n
authorities alleging that appellant is attempting to trespass into the<\/p>\n
suit property.    Exhibit B7 is the certified copy of       order dated<\/p>\n
9.11.1987 in C.R.P. No.1614 of 1987 of this Court. That was a revision<\/p>\n
filed by the appellant from an order passed in O.S. No.670 of 1982.<\/p>\n
The C.R.P. was directed against Janu, respondent No.1 and Padmini,<\/p>\n
mother of respondent No.2. That document was produced to show<\/p>\n
S.A. No.95 of 2000<\/p>\n
                                  -: 6 :-<\/span><\/p>\n
that all was not well and good between        appellant and    Janu.  In<\/p>\n
paragraph 3 of Ext.B7 it is stated that according to Janu, the appellant<\/p>\n
was taking entire income from the properties and that she was not<\/p>\n
even being given anything for bare maintenance. She expressed her<\/p>\n
desire not to stay with the appellant in the house in the property.<\/p>\n
      5.      The suspicious circumstances found by the learned Munsiff<\/p>\n
and highlighted before me by the learned counsel for appellant are:<\/p>\n
There was no reason why Janu, at a time when she was undergoing<\/p>\n
treatment at the hospital should have rushed to the office of D.W.2 to<\/p>\n
get a Will executed and that too, when she was upset by the death<\/p>\n
of her only daughter, Padmini on 18.11.1990.       Assuming that Janu<\/p>\n
had a grudge to nurse against the appellant for the reasons stated in<\/p>\n
Ext.B7 there is no reason why she excluded respondent No.2 from<\/p>\n
inheritance particularly as her daughter, Padmini died just a few days<\/p>\n
back. Yet another circumstance highlighted by the learned counsel is<\/p>\n
that going by the evidence of D.W2 (Scribe) he was in the habit of<\/p>\n
enquiring about the free will of the executant while undertaking the<\/p>\n
preparation of Wills but no such enquiry was conducted in this case.<\/p>\n
D.W.1 (respondent No.1) was not able to identify the signature of the<\/p>\n
executant of Ext.B2 though he claimed that he can           identify the<\/p>\n
signature of Janu. Though evidence would show that even before the<\/p>\n
S.A. No.95 of 2000<\/p>\n
                                 -: 7 :-<\/span><\/p>\n
alleged execution of Ext.B2 final decree was passed in O.S. No.670 of<\/p>\n
1982 as per which Janu got absolute right over the said property and<\/p>\n
D.W.2 claimed that for the purpose of preparation of Ext.B2 Janu had<\/p>\n
handed over copy of the final decree, there is no reference in Ext.B2 to<\/p>\n
the final decree and instead, the schedule description in Ext.B2 is<\/p>\n
based on the report of the Advocate Commissioner in the final decree<\/p>\n
proceedings. Though the property is situated within the local limits of<\/p>\n
Sub Registry Office at Kunnamangalam, Ext.B2 is registered at the<\/p>\n
Sub Registry Office at Kozhikode and no explanation is forthcoming<\/p>\n
from the propounder, (respondent No.1) of Ext.B2 for the same. There<\/p>\n
are material contradictions in the evidence of D.Ws.2 and 3, Scribe<\/p>\n
and first attester in Ext.B2.  In that situation according to learned<\/p>\n
counsel for appellant, non-examination of the second attester in Ext.B2<\/p>\n
is fatal.\n<\/p>\n
      6.      What exactly are the suspicious circumstances which the<\/p>\n
propounder is required to clear has been decided by this Court in<\/p>\n
Papoo v. Kuruvila (1994(2) KLT 278). It was held thus:<\/p>\n
                  “Any and every circumstance cannot be<\/p>\n
             taken  as   suspicious    circumstances.     A<\/p>\n
             circumstance would be suspicious only when it<\/p>\n
S.A. No.95 of 2000<\/p>\n
                                   -: 8 :-<\/span><\/p>\n
             is not normal or is not normally expected in a<\/p>\n
             normal situation or is not expected of a normal<\/p>\n
             person. In a case where the propounder let in<\/p>\n
             evidence to prove the due execution of the Will,<\/p>\n
             the burden shifts on to the defendants to<\/p>\n
             substantiate their case that the execution of the<\/p>\n
             Will is shrouded in suspicious circumstances.<\/p>\n<\/blockquote>\n
             When     the   propounder    of  the   Will  has<\/p>\n
             discharged his initial onus, the caveator-the<\/p>\n
             person opposing the issue of the probate,<\/p>\n
             should prove the suspicious circumstances….”<\/p>\n<\/blockquote>\n
The precise question for consideration is whether respondent No.1 was<\/p>\n
able to prove due attestation of the Will and remove the suspicious<\/p>\n
circumstances if any, as understood in Pappoo’s case.<\/p>\n
      7.      So far as the execution of Ext.B2 is concerned, even going<\/p>\n
by the averments in paragraph 3 of the plaint it would appear that the<\/p>\n
signature of Janu in Ext.B2 is not disputed and instead, vitiating<\/p>\n
circumstances are pleaded         in that according to the appellant,<\/p>\n
execution was not on account of free will and pleasure of Janu. True,<\/p>\n
even    in   the   absence    of  specific  plea   regarding  suspicious<\/p>\n
circumstances     it is for the propounder to remove such suspicious<\/p>\n
circumstances, of if any. Therefore much stress need not be given to<\/p>\n
S.A. No.95 of 2000<\/p>\n
                                   -: 9 :-<\/span><\/p>\n
the lack of specific pleadings in the plaint. But respondent No.1 filed<\/p>\n
written statement setting up the Will and produced Ext.B2, Will in the<\/p>\n
trial court. Even though provisions of Order VIII of the Code of Civil<\/p>\n
Procedure does not specifically provides so,         it was open   to the<\/p>\n
appellant to file a replication with the permission of the court stating<\/p>\n
whatever contentions he has, regarding the execution of Ext.B2.<\/p>\n
Appellant did not do that.\n<\/p>\n
      8.      Regarding the    execution of     Ext.B2, Will there is the<\/p>\n
evidence of D.Ws.2 and 3.       Learned counsel took me through the<\/p>\n
deposition of D.Ws.2 and 3.       I did not find any challenge on their<\/p>\n
version    that   Janu had subscribed her signature in Ext.B2 and<\/p>\n
presented it for registration. It is true that when respondent No.1 was<\/p>\n
examined as D.W1, he was not able to confirm whether the signature<\/p>\n
in Ext.B2 was that of her mother. But proof regarding due execution<\/p>\n
has to come from the attesting witnesses and not necessarily from<\/p>\n
D.W.1,     though his evidence will also be relevant on         the issue<\/p>\n
regarding execution.     I stated that there is no challenge to the<\/p>\n
evidence of D.Ws.2 and 3 regarding the signature of the executant in<\/p>\n
Ext.B2. There is no case that somebody personating Janu appeared<\/p>\n
before   the Sub Registrar for the       registration of Ext.B2.  Though<\/p>\n
registration of the Will by itself is no guarantee for its genuineness or<\/p>\n
S.A. No.95 of 2000<\/p>\n
                                -: 10 :-<\/span><\/p>\n
due execution, that is not altogether irrelevant for consideration.<\/p>\n
Exhibit B2 contains an endorsement of the Sub Registrar as provided<\/p>\n
under Section 34 of the Registration Act and sub-sec.2 requires the<\/p>\n
Sub Registrar to question the executant regarding the execution of the<\/p>\n
document.      In fact  D.W.3 stated that he heard the Sub Registrar<\/p>\n
asking something to Janu but he was not able to say what exactly<\/p>\n
that was. There is no reason to think in the light of the statutory<\/p>\n
obligation cast on the Sub Registrar under Sec.34(2) of the<\/p>\n
Registration Act      that what the Sub Registrar asked       Janu was<\/p>\n
something other than he was required to do under          the said sub-<\/p>\n
section.\n<\/p>\n
      9.      So far as the sound disposing state of mind of Janu to<\/p>\n
execute Ext.B2, Will is concerned      much reliance is made on the<\/p>\n
evidence of P.W.1, uncle which I have already referred to. Going by<\/p>\n
that evidence Janu was not in sound state of mind to execute any<\/p>\n
document. D.W.1 has given evidence to the contra. It is stated in the<\/p>\n
plaint that on account of his illness appellant was not able to look<\/p>\n
after Janu in the hospital as he himself was laid up in the house of his<\/p>\n
sister (Padmini) and therefore respondent No.1 (D.W.1) was looking<\/p>\n
after Janu in     the hospital. If that be so, D.W.1 must be more<\/p>\n
competent to speak about the condition of his mother during that time.<\/p>\n
S.A. No.95 of 2000<\/p>\n
                                     -: 11 :-<\/span><\/p>\n
According to him, Janu was admitted in the hospital due to stomach<\/p>\n
ache. If the appellant has a contention that Janu was admitted in the<\/p>\n
hospital for any other illness which affected her mental capacity,<\/p>\n
certainly he should have summoned the relevant documents from the<\/p>\n
hospital and proved the same.         That also was not done. According to<\/p>\n
the learned counsel for the appellant it was for respondent No.1 to<\/p>\n
summon relevant records from the hospital to show that Janu was<\/p>\n
admitted for stomach pain and for no other illness. I am unable to<\/p>\n
agree. For, respondent No.1 discharged the initial burden of proving<\/p>\n
the execution of Ext.B2         by examining D.Ws.2 and 3.     There was<\/p>\n
nothing affecting the mental capacity of Janu. In that situation, the<\/p>\n
onus of proof was shifted to the appellant to prove otherwise, which<\/p>\n
he did not.\n<\/p>\n
      10.     It is difficult to think that as stated by P.W.1, Janu was<\/p>\n
unconscious at the time of his first visit in the hospital and therefore<\/p>\n
was unable to move about. At least, the fact of registration of Ext.B2<\/p>\n
on 26.11.1990 would show that she had been from the hospital to the<\/p>\n
office of the Sub Registrar. I am not inclined to think that Janu, if were<\/p>\n
in a condition as spoken by P.W.1, was able to move about, had been<\/p>\n
to the office of the Sub Registrar and answered his questions as<\/p>\n
provided in Sec.34(2) of the Act.\n<\/p>\n
S.A. No.95 of 2000<\/p>\n
                                    -: 12 :-<\/span><\/p>\n
      11.     I shall refer to the contention raised by the learned counsel<\/p>\n
that there was no necessity for Janu to disinherit the appellant and<\/p>\n
respondent No.2. Counsel contends that respondent No.1 cannot draw<\/p>\n
strength from Ext.B7 as to the relationship between appellant and<\/p>\n
Janu since it is admitted by respondent No.1 when examined as D.W.1<\/p>\n
that until 1991 Janu was staying with the appellant.         But D.W1 has<\/p>\n
stated   that until 1990        Janu used to stay with    all of them and<\/p>\n
thereafter she was staying with him throughout.         Exhibit B7 contains<\/p>\n
the statement of Janu that her relationship with the appellant was not<\/p>\n
cordial during that time and she even expressed her wish not to stay in<\/p>\n
the house with the appellant. It is to be borne in mind that the very<\/p>\n
object of executing a Will is to disinherit one or other       natural heir<\/p>\n
who, but for the testamentary disposition would inherit the property of<\/p>\n
the testator. The folly of the testator is not a consideration. The<\/p>\n
relevant question is whether Janu was in sound disposing state of mind<\/p>\n
and executed Ext.B2 on her free will. So far as the disinheritance of<\/p>\n
respondent No.2 is concerned, P.W.1 has admitted that respondent<\/p>\n
No.2 and his family are placed in reasonably good circumstances. It is<\/p>\n
in evidence that respondent No.1 was working in CWMS bus service<\/p>\n
and while so, met with an accident resulting in          40% disability as<\/p>\n
stated in Ext.B5. Though the general attitude of a mother, P.W.1 did<\/p>\n
S.A. No.95 of 2000<\/p>\n
                                  -: 13 :-<\/span><\/p>\n
not deny that when the son who was working and earning met with an<\/p>\n
accident, the mother may show sympathy on him. This may be the<\/p>\n
reason     for Janu executing a Will in favour of respondent No.1<\/p>\n
disinheriting the appellant and respondent No.2.<\/p>\n
      12.     In Ext.B2 there is no reference to the final decree in O.S.<\/p>\n
No.670 of 1982. But reference is made to the allotment of the suit<\/p>\n
property as the share of      Janu as per the report of the Advocate<\/p>\n
Commissioner in the final decree.     No doubt, final decree was passed<\/p>\n
even before Ext.B2 and D.W.2 also stated that copy of the final decree<\/p>\n
was handed over to him for preparing the Will.         But it is common<\/p>\n
knowledge        that when allotment is       made by the Advocate<\/p>\n
Commissioner in a partition suit and that allotment is accepted, the<\/p>\n
schedule to the final decree contains the allotment made by the<\/p>\n
Advocate Commissioner. Therefore it made no factual difference so<\/p>\n
far as this case is concerned whether it was relying on final decree or<\/p>\n
copy of report of the Advocate Commissioner that the schedule in<\/p>\n
Ext.B2 was prepared.     On the question as to why Janu rushed to the<\/p>\n
office of D.W.2 to prepare the Will while she was undergoing treatment<\/p>\n
at the hospital and that too, immediately after the death of her only<\/p>\n
daughter, Padmini on 18.11.1990 the first appellate court observed<\/p>\n
that possibly Janu felt that her days are numbered as she was old<\/p>\n
S.A. No.95 of 2000<\/p>\n
                                   -: 14 :-<\/span><\/p>\n
(she was aged 72 at the time of Ext.B2) and in the circumstance that<\/p>\n
was prevailing she though that she should not lose time in executing<\/p>\n
the Will.\n<\/p>\n
      13.     The   property is  situated within the local limits of Sub<\/p>\n
Registrar’s office, Kunnamangalam but Ext.B2 is seen registered at<\/p>\n
Kozhikode. That according to learned counsel for the appellant is a<\/p>\n
suspicious circumstance. It is not disputed that notwithstanding the<\/p>\n
place where the property is situated, a document can be registered in<\/p>\n
any other Sub Registrar office.       Evidence of D.Ws.2 and 3 though<\/p>\n
there is some discrepancy as to the exact period, would indicate that<\/p>\n
even before       Janu was admitted in the hospital, she thought of<\/p>\n
executing a Will and approached D.W.2 for the purpose. May be that<\/p>\n
when she was available at Kozhikode due to admission in a hospital<\/p>\n
there, she thought it convenient to get the Will        executed   in the<\/p>\n
nearby Sub Registrar office probably as she did not want others to<\/p>\n
know about it.\n<\/p>\n
      14.     Contradictions highlighted in the evidence of D.Ws.2 and 3<\/p>\n
are not as to the execution of the Will or its registration but only as to<\/p>\n
the details of it which in my view does not affect the veracity of their<\/p>\n
evidence on the crucial point. First appellate court has considered the<\/p>\n
evidence and of course, some of the contentions raised by the<\/p>\n
S.A. No.95 of 2000<\/p>\n
                                   -: 15 :-<\/span><\/p>\n
appellant are met with the aid of binding authorities. First appellate<\/p>\n
court found that due execution and attestation of Ext.B2 are proved<\/p>\n
and that there are no suspicious circumstances surrounding its<\/p>\n
execution.\n<\/p>\n
      15.     At this stage, learned counsel for appellant requested that<\/p>\n
the case may be remanded to the trial court so that the appellant<\/p>\n
could summon the records from Asoka hospital, Kozhikode regarding<\/p>\n
the treatment of Janu. In the facts and circumstances of the case and<\/p>\n
considering the fact that this litigation has been pending from 1992<\/p>\n
onwards and no justifiable reason is stated for not summoning the<\/p>\n
records at the appropriate stage and in the light of the evidence which<\/p>\n
I have discussed above, I am not inclined to accede to that request.<\/p>\n
      16.     Before concluding I may point out the decision of the Apex<\/p>\n
Court in Venkatachala v. B.N. Thimmajamma (AIR<\/a> 1959 SC<\/p>\n
443). It was held thus:\n<\/p>\n<\/p>\n
                    “As in the case of proof of other<\/p>\n
              documents so in the case of proof of Wills it<\/p>\n
              would    be    idle  to    expect   proof   with<\/p>\n
              mathematical certainty. The test to be applied<\/p>\n
              would be the usual test of the satisfaction of<\/p>\n
              the prudent mind in such matters”.<\/p>\n<\/blockquote>\n
S.A. No.95 of 2000<\/p>\n
                                  -: 16 :-<\/span><\/p>\n
      17.     From the evidence on record, I am of the view that such<\/p>\n
evidence has been let in by the propounder as found by the first<\/p>\n
appellate court. There is no reason to interfere.<\/p>\n
      Appeal fails. It is dismissed. No costs.\n<\/p>\n
      Civil Miscellaneous Petition No.920 of 2003 and 339 of 2004 shall<\/p>\n
stand dismissed.\n<\/p>\n<\/p>\n
                                            THOMAS P.JOSEPH, JUDGE.\n<\/p>\n
\nvsv<\/p>\n
S.A. No.95 of 2000<\/p>\n
                      -: 17 :-<\/span><\/p>\n
                               THOMAS P.JOSEPH, J.\n<\/p>\n
                              ===================
\n                                 S.A. NO.95 OF 2000
\n                              ===================<\/p>\n
                                   J U D G M E N T<\/p>\n
                                17TH FEBRUARY, 2009<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court K.K.Surendran vs K.K.Balakrishnan on 17 February, 2009 IN THE HIGH COURT OF KERALA AT ERNAKULAM SA.No. 95 of 2000(C) 1. K.K.SURENDRAN … Petitioner Vs 1. K.K.BALAKRISHNAN … Respondent For Petitioner :SRI.P.V.KUNHIKRISHNAN For Respondent :SRI.P.V.MADHAVAN NAMBIAR The Hon’ble MR. Justice THOMAS P.JOSEPH Dated :17\/02\/2009 O R D E R THOMAS P.JOSEPH, J. = […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-149549","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nK.K.Surendran vs K.K.Balakrishnan on 17 February, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/k-k-surendran-vs-k-k-balakrishnan-on-17-february-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"K.K.Surendran vs K.K.Balakrishnan on 17 February, 2009 - 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