Kerala High Court
V.S.Harikrishnan vs V.S.Sreelekha on 8 July, 2014
Author: P.Bhavadasan
Bench: P.Bhavadasan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.BHAVADASAN
TUESDAY,THE 8TH DAY OF JULY 2014/17TH ASHADHA, 1936
RSA.No. 402 of 2013
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[A.S.NO.59/2007 OF PRINCIPAL SUB COURT, THIRUVANANTHAPURAM,
O.S.NO.1808/2003 IIIRD ADDITIONAL MUNSIFF'S COURT,
THIRUVANANTHAPURAM]
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APPELLANT/APPELLANT/4TH DEFENDANT:
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V.S.HARIKRISHNAN, AGED 28 YEARS,
S/O.VELAYUDHAN NAIR, T.C 15/1993,
HINDI PRACHARSABHA LANE, VAZHUTHACAUD,
THIRUVANANTHAPURAM, NOW RESIDING AT FLAT NO. 4,
NANDANAM APARTMENTS, JAI PRAKASH LANE, POONKUNNAM,
THRISSUR-680 002.
BY ADVS.SRI.K.M.SATHYANATHA MENON,
SMT.KAVERY S THAMPI,
SRI.P.YADHU KUMAR.
RESPONDENTS/RESPONDENTS/PLAINTIFF & DEFENDANTS 1 TO 3:
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1. V.S.SREELEKHA, AGED 45 YEARS,
W/O.K SUNIL KUMAR, A-301, KUMARADHARA NATIONAL GAMES,
HOUSING COMPLEX, KORAMANGALA, BANGALORE-560 047.
2. CHANDRIKA KUMARI, AGED 59 YEARS,
D/O.SEETHALEKSHMI, T C 15/993,
HINDI PRACHARSABHA LANE, VAZHUTHACAUD,
THIRUVANANTHAPURAM-695 014.
3. C.KAVITHA, AGED 35 YEARS,
D/O.CHANDRIKA KUMARI, T.C 15/993,
HINDI PRACHARSABHA LANE, VAZHUTHACAUD,
THIRUVANANTHAPURAM-695 014.
4. C.INDULEKHA, AGED 37 YEARS,
T.C 15/993, HINDI PRACHARSABAHA LANE, VAZHUTHACAUD,
THIRUVANANTHAPURAM-695 014.
R1 BY ADVS.SRI.V.SURESH,
SRI.G.SUDHEER.
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION
ON 08-07-2014, ALONG WITH R.S.A.NO. 405/2013, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
Prv.
P.BHAVADASAN, J.
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Regular Second Appeal Nos.402 & 405 OF 2013
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Dated this the 8th day of July, 2014.
J U D G M E N T
Two suits namely, O.S.No.1808/2003 and O.S.No.259/2004 were jointly tried and disposed of by a common judgment. Among them O.S.No.1808/2003 was treated as leading case and the parties and facts are referred to as they are available in that case. O.S.No.1808/2003 was decreed while O.S.No.259/2004 was dismissed. It may be mentioned here itself that O.S.No.1808/2003 was one for recovery of possession on the strength of title and for consequential reliefs while O.S.No.259/2004 was one for partition.
2. It is not in dispute that the properties involved in these two suits belonged to one Velayudhan Nair. He had two daughters namely, Sreelatha and Sreekala through his 1st wife. Consequent on the death of his 1st wife, he married Chandrika R.S.A Nos.402 & 405/2013 2 Kumari who is the 1st defendant in O.S.No.1808/2003 and 3rd defendant in O.S.No.259/2004. Chandrika Kumari, in her earlier marriage, had two daughters by name, Kavitha and Indulekha who are arrayed as 2nd and 3rd respondents in O.S.No.1808/2003. Harikrishnan, who is arrayed as the 4th respondent in O.S.No.1808/2003 and who is the plaintiff in the other suit, is the son of Chandrika Kumari through Velayudhan Nair.
3. The plaintiff in O.S.No.1808/2003 laid the suit on the basis of Ext.A1 Will alleged to have been executed by Velayudhan Nair by which the ground floor of the two storied building was bequeathed to the plaintiff in the suit. In fact, by Ext.A1 Will, he had bequeathed the two storied building to two of his daughters; ground floor to 1st daughter Sreelatha and 1st floor to the 2nd daughter Sreekala. The facts indicate that later on, by Ext.A2 of the year 1998, when Sreekala got married, the upper portion was assigned to her. Velayudhan Nair died on 14.04.2002. The plaintiff in O.S.No.1808/2003 alleged that consequent on the R.S.A Nos.402 & 405/2013 3 death of Velayudhan Nair, the bequeath took effect and the ground floor came to vest with her. She requested the defendants in the suit to vacate the premises to which they did not accede and hence suit was laid.
4. The defendants resisted the suit by pointing out that the Will was not a genuine document and the testator had no capacity to execute the Will. It was also pointed out that even assuming that the Will is genuine, that took in only immovable property and not movable property. Several other contentions had also been raised which are not relevant for the purpose. In the other suit, assailing the Will, the son of Velayudhan Nair through his 2nd wife laid a suit for partition.
5. Issues were raised in both the suits and the parties went to trial. The evidence consists of the testimony of PWs 1 to 4 and the documents marked as Exts.A1 to A8(a) on the side of the plaintiff in O.S.No.1808/2003. The defendants had DW1 examined.
R.S.A Nos.402 & 405/2013 4
6. On appreciation of the evidence in the case, both the courts below came to the conclusion that Ext.A1 Will is a genuine document which has been executed by Velayudhan Nair. Consequently the terms of the Will in favour of the plaintiff in O.S.No.1808/2003 had taken effect and she became the absolute owner of ground floor. Consequently, the other suit for partition was dismissed.
7. Learned counsel appearing for the appellant assailed the findings of the courts below regarding the Will. He pointed out that the testator was incapable of executing a document and the Will is not a genuine document. It is further pointed out that Ext.A2 document which was subsequently executed in favour of Sreekala does not make mention of Ext.A1 and that casts suspicion regarding the genuineness of Ext.A1. Learned counsel then went on to contend that in paragraph 25 of the written statement in O.S.No.1808/2003, they specifically pointed out that the court fee paid is not sufficient and that issue has not R.S.A Nos.402 & 405/2013 5 been considered by the courts below at all. Labouring on the point, it was contended that in Ext.A2 by which the 1st floor of the two storied building was assigned in favour of Sreekala, valuation of the building was made at Rs.3 lakhs which would clearly show that the valuation was far below the required value. This issue has not been considered at all by the courts below. Even otherwise under Section 12(2) of the Court Fees and Suits Valuation Act, the court has to address itself on the issue of court fee and also to consider the issue of valuation. It was then contended that even assuming that the Will is genuine, that bequeathed only immovable properties and the movable properties available are liable to be partitioned among the sharers.
8. Learned counsel appearing for the contesting respondents pointed out that even though it is contended that Velayudhan Nair was incapacitated and was not in a position to execute the Will, it is significant to notice that even as per the R.S.A Nos.402 & 405/2013 6 defence set up, his illness was diagnosed as Cancer only in 1998 whereas Ext.A1 is of the year 1997. Again apart from merely mentioning that Velayudhan Nair was chronically ill, no medical evidence was adduced to substantiate that contention. In support of that Will, the propounder, scribe and also the document writer were given evidence. It is also significant to notice, according to the learned counsel, that the 2nd attesting witness was none other than the 2nd wife of Velayudhan Nair who is the mother of the plaintiff in O.S.No.259/2004. The other attesting witness to Ext.A1 was no more and he was not available for examination and his certificate of death was also produced. The examination of the 2nd attesting witness, being a party to the suit, became necessary and ultimately she was brought on warrant issued from the court and she, though admitted signature of Velayudhan Nair and also her signature in the document namely, Ext.A1 Will, went on to say that she was unaware of the contents of the Will and she was made to believe R.S.A Nos.402 & 405/2013 7 that some other document was being executed.
9. Learned counsel appearing for the contesting respondents also pointed out that it is significant to notice that she is an identifying witness also. As regards valuation, learned counsel pointed out that except for a vague allegation in paragraph 25 of the written statement wherein it was only stated that the court fee paid is not sufficient, no specific objection to valuation was taken. There is no specific contention that the valuation shown in the plaint is incorrect and the valuation is far below the market value. Consequently, no issue was raised by the trial court and there was no attempt from the side of the appellant to have an issue raised in that regard. It is significant to notice, according to the learned counsel, that no such ground was urged before the lower appellate court also. Learned counsel fairly conceded that as far as the movable property is concerned, the decree cannot stand and the contesting respondents had no objection in allowing the defendant to appropriate the furnitures R.S.A Nos.402 & 405/2013 8 in the building which belonged to Velayudhan Nair. The contention regarding the genuineness of Will is only to be repelled. True, the contention was that Velayudhan Nair was so incapacitated that he was unable to execute the Will. But, as noticed by the courts below, illness was diagnosed as Cancer in 1998 whereas the Will was executed in 1997. It is also significant to notice that Ext.A2 assignment deed in favour of Sreekala was executed in 1998 and there is no challenge to that document. Apart from the above fact, it needs to be noticed that the propounder has given evidence in support of the Will so also the scribe and the document writer. It is not as if there was no attempt from the side of the propounder to examine the attesting witnesses to prove due execution and attestation of Ext.A1 Will.
10. It is not disputed that one of the attesting witnesses was no more at the time when trial commenced and therefore his presence could not be procured. It is interesting to note that the other attesting witness is none other than the 2nd wife of R.S.A Nos.402 & 405/2013 9 Velayudhan Nair who is the mother of the plaintiff in O.S.No.259/2004. Naturally, it is difficult to accept her claim. However, her evidence shows that she admitted that the signature found in Ext.A1 is that of Velayudhan Nair. Even assuming that the attesting witnesses does not support the execution and attestation of the Will, that is not a ground to doubt the genuineness of the Will. Section 71 of the Indian Evidence Act provides other means of proof of genuineness of the Will. That has been resorted to by the plaintiff in O.S.No.1808/2003 by examining the scribe and the document writer and proving that the signature found in Ext.A1 is that of Velayudhan Nair apart from the requirement of law for calling upon one of the attesting witnesses which has also been complied with by the plaintiff. In the light of the fact that Ext.A2 document has been executed subsequent to Ext.A1 Will, challenge against the execution of Ext.A1 fails for want of sound disposing mind fact and the evidence of PWs 1 to 4 are sufficient to show that in R.S.A Nos.402 & 405/2013 10 fact the Will was executed by Velayudhan Nair.
11. The courts below were therefore justified in coming to the conclusion that Ext.A1 is a genuine document and it is the last deposition of Velayudhan Nair.
12. There is considerable force in the contention raised by the learned counsel for the respondents regarding valuation. Except for a vague statement in paragraph 25 of the written statement stating that court fee paid is not sufficient, there is no specific contention that the valuation shown is incorrect and it is far below the market value. Presumably, because of that reason, the courts below did not feel it necessary to raise issue in that regard. If the appellant had a grievance regarding the non raising of that issue, nothing prevented him from agitating the issue and getting an issue raised in that regard. Apart from the said fact, it is also significant to notice that there is no whisper in the appeal memorandum before the lower appellate court regarding this aspect. The issue was not seriously agitated R.S.A Nos.402 & 405/2013 11 before the lower appellate court. It is too late to contend that the valuation shown is incorrect.
13. There may be considerable force in the contention raised by the learned counsel for the appellant that bequeath as per Ext.A1 Will takes in only a building and the proportionate land mentioned therein. As far as the movable properties are concerned, that is not covered by Ext.A1 Will. Sri.V.Suresh, learned counsel appearing for the respondents conceded that the contesting respondents have no objection in the plaintiff in O.S.No.259/2004 taking the entire furnitures from the building which belonged to Velayudhan Nair. To that extent, the decree may need modification.
14. Learned counsel appearing for the appellant pointed out that in case this Court finds that the Will is genuine and the defendants in O.S.No.1808/2003 have to vacate the premises, the appellant may be given some time to vacate the premises. Learned counsel appearing for the respondents pointed out that R.S.A Nos.402 & 405/2013 12 in execution take out a year ago the defendants in the suit prayed for three months time and that was granted and that was challenged before this Court in original petition. By that time, second appeal was filed and orders obtained and therefore the appellant has enjoyed almost one year time by now and it may not be proper to grant further time.
15. However, considering the relationship between the parties and also the fact that the appellant has to shift his residence, it is felt that a breathing time may be granted to the appellant to vacate the premises. It is also pointed out by the learned counsel for the respondents that going by the address given in the writ petition, the appellant is not residing in the premises and only the 2nd wife of Velayudhan Nair seems to be residing in the premises. If, as a matter of fact, the appellant is not residing in the premises, there is no question of occupying the premises further.
16. However, the 1st defendant in O.S.No.1808/2003 is R.S.A Nos.402 & 405/2013 13 granted four months time from today to vacate the premises provided she files an unconditional affidavit before the court below within a period of two weeks from today undertaking to vacate the premises before the expiry of four months from today. The decree in O.S.No.1808/2003 shall stand modified to the effect that the plaintiff in the said suit is entitled for a decree of possession on the strength of title and consequential relief in respect of the ground floor. The defendants in the suit are allowed to remove the furnitures in the building which belonged to Velayudhan Nair.
With the above modification, these appeals are disposed of. There will be no order as to cost in these appeals.
Sd/-
P.BHAVADASAN JUDGE smp // True Copy // P.A. to Judge.