Kerala High Court
N.C.Kaladharan vs Kamaleswaran Chellappan on 29 September, 2025
2025:KER:72736
RFA NO. 177 OF 2018
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
MONDAY, THE 29TH DAY OF SEPTEMBER 2025 / 7TH ASWINA, 1947
RFA NO. 177 OF 2018
AGAINST THE JUDGMENT DATED 28.02.2018 IN OS NO.1285 OF 1994 OF
PRINCIPAL SUB COURT, THIRUVANANTHAPURAM
APPELLANT/5TH DEFENDANT:
N.C.KALADHARAN
S/O.N.CHELLAPPAN, JAGATHY HOUSE, VELI ROAD, BEACH,
THIRUVANANTHAPURAM-695007.
BY ADVS.
SRI.S.SREEKUMAR (SR.)
SRI.P.MARTIN JOSE
SRI.P.PRIJITH
SRI.THOMAS P.KURUVILLA
SRI.R.GITHESH
SHRI.AJAY BEN JOSE
SRI.MANJUNATH MENON
SHRI.SACHIN JACOB AMBAT
SMT.ANNA LINDA EDEN
SHRI.HARIKRISHNAN S.
RESPONDENTS/PLAINTIFFS & DEFENDANTS 1 TO 4:
1 KAMALESWARAN CHELLAPPAN
AGED 76 YEARS
S/O.CHELLAPPAN, T.C.16/849, JAGATHY,
THIRUVANANTHAPURAM-695014,
PRESENTLY RESIDING AT 708, MADISON AVENUE,
PROSPECT PARK P.A. USA-19076.
2025:KER:72736
RFA NO. 177 OF 2018
2
2 C.KAMALASANAN
S/O.N.CHELLAPPAN,
RESIDING AT T.C.15/500,
JAGATHY, KOCHAR ROAD,
THIRUVANANTHAPURAM-695014.
3 DR. C.KAMADEVAN [DIED]
S/O.LATE N.CHELLAPPAN,
N.C.HOSPITAL,
THIRUVANANTHAPURAM-695014.
4 G.P.MANGALAM
W/O.DR.CHANDRA GUPTAN (USA),
T.C.24/1899,
MINCHIN ROAD, JAGATHY,
THIRUVANANTHAPURAM-695014.
5 G.P.MAHESWARI
W/O.DR.M.N.SOMAN, RTD. SURGEON,
NORTH OF ALWAYE BRIDGE,
ALWAYE-683101,
KERALA.
ADDL.R6 DR.RADHARANI
W/O.DR.C.KAMADEVAN,
N.C.HOSPITAL,
THIRUVANANTHAPURAM - 695 014.
ADDL.R7 K.NARAYANAN
S/O.DR.C.KAMADEVAN,
N.C.HOSPITAL,
THIRUVANANTHAPURAM - 695 014
ADDL.R8 K.LAKSHMI,
S/O.DR.C.KAMADEVAN,
N.C.HOSPITAL,
THIRUVANANTHAPURAM - 695 014
[LEGAL HEIRS OF THE DECEASED 3RD RESPONDENT ARE IMPLEADED IN
THE PARTY ARRAY AS ADDITIONAL RESPONDENTS 6 TO 8 VIDE ORDER
DATED 14/6/19 IN NO.2/19]
2025:KER:72736
RFA NO. 177 OF 2018
3
ADDL.R9 M/S.PEAGREEN PROJECTS AND DEVELOPERS LLP
HAVING ITS REGISTERED OFFICE AT 34/1806 D,
KURICKAL ARCADE,
3RD FLOOR, EDAPPALLY P.O.,
NH-47, ERNAKULAM 682024
REPRESENTED BY ITS DESIGNATED PARTNER M.K.J.PAUL.
[ADDL.9TH RESPONDENT IS IMPLEADED VIDE ORDER DATED 29/09/2025
IN NO.2/2018 (I.A.NO.868/2018) IN RFA 177/2018]
BY ADVS.
R1 SRI.P.A.AHAMMED
SRI.THOUFEEK AHAMED
R2 SMT.SUMATHY DANDAPANI (SR.)
SRI.MILLU DANDAPANI
R3 & ADDL.R6 TO R8 SRI.M.SREEKUMAR
R4 & R5/CAVEATOR SRI. V. AJAYAKUMAR
SRI. SIDHARTH A. MENON
R9 SRI.JOSEPH KODIANTHARA (SR.)
SHRI.ABRAHAM JOSEPH MARKOS
SRI.ISAAC THOMAS
SMT.RACHEL ABRAHAM
SRI.HARAN THOMAS GEORGE
SRI.P.G.CHANDAPILLAI ABRAHAM
SRI.V.ABRAHAM MARKOS
THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 11.09.2025,
THE COURT ON 29.09.2025 DELIVERED THE FOLLOWING:
2025:KER:72736
RFA NO. 177 OF 2018
4
(CR)
JUDGMENT
1. The Appellant is the Defendant No.5 in the suit. The Respondent No.1 is the Original Plaintiff, the Respondent No.2 is the Defendant No.1, who was later transposed as the Additional Plaintiff No.2. The Respondents 3 to 5 are the Defendant Nos.2 to 4.
2. During the pendency of this Appeal, the Respondent No.3 died and his legal heirs were impleaded as Additional Respondent Nos.6, 7 & 8.
3. The original Plaintiff filed the suit for partition of plaint A, B & C schedule properties on the allegation that the said properties belonged to the mother of the Plaintiff and the Defendants, Smt. Gouri Ponnamma, who died on 01.11.1994.
2025:KER:72736 RFA NO. 177 OF 2018 5
4. Plaint A schedule property contains two items of immovable properties. Item No.1 is 35½ cents of land in Sy.No.952/2 & 953 of Vanchiyoor village in Thiruvananthapuram Taluk. Item No.2 property is 9 Acres and 6½ cents of land in Sy.No.2913 of Alamcode village in Chirayinkeezhu Taluk. Plaint B schedule property is the deposit in the name of Gouri Ponnamma in Fixed Deposit, Savings Bank and Current Account & accrued interest with Syndicate Bank Main and Fort or any other branches or in any such other banks. Plaint C schedule property is all Deposits and Fixed Deposits, Assets of stock in trade of N.C. & Company, Thiruvananthapuram.
5. The suit was filed on 15.11.1994. The material averments in the suit are that the Plaintiff and the Defendants are the children of a Govt. Contractor, late Narayanan Chellappan, and late Gouri Ponnamma. They died on 30.04.1977 and 01.11.1994 respectively. Plaint Schedule Item No.1 property was originally 2025:KER:72736 RFA NO. 177 OF 2018 6 the joint property of the father and the mother, and other items of properties belonged to the father. On the basis of Ext.B19 Will dated 10.08.1976, the entire Plaint Schedule Properties were bequeathed in the name of Gouri Ponnamma. The District Court, Thiruvananthapuram, granted Letters of Administration with respect to the said Will in favour of Gouri Ponnamma as per the Decree in O.S.No.9/1977. The Plaintiff and the Defendant No.1, with the father, executed major contracts of hydroelectric projects at Idukki and Kuttiyadi for the K.S.E.B. Since there arose disputes with respect to the said works, O.S.No.25/1974 and O.P.(Arb.)No.26/1971 were instituted before the Sub Court, Thiruvananthapuram, and O.S.No.1/1975 was instituted before the Compensation Tribunal, Thiruvananthapuram, and the said suits were pending when the father expired. The said suits were decreed, and the mother received several lakhs of rupees from the court and it is 2025:KER:72736 RFA NO. 177 OF 2018 7 understood that the mother has made plaint B schedule deposits. Father was the managing partner of the firm, 'N.C. & Company'. After the demise of the father, the mother and Defendant No.5 were continuing the business. N.C. & Company had major contracts in the Thiruvananthapuram airport. Defendant No.5 was carrying on the business along with the mother. The firm had huge assets by way of deposits and heavy equipment. The assets of the firm are described in Plaint C schedule. The mother died intestate and has not alienated any of the properties owned by her and obtained from the father as per Ext.B19 Will. The Plaintiff and the Defendants are Hindu Ezhavas, and they are governed by the Hindu Succession Act in the matter of succession. The Plaint Schedule Properties are liable to be partitioned among the Plaintiff and the Defendants and the Plaintiff is entitled to get 1/6 share out of the same.
6. All the Defendants filed separate Written Statements in the suit.
2025:KER:72736 RFA NO. 177 OF 2018 8
7. The first Written Statement was filed by the Defendant No.5 on 09.11.1995, who alone opposed the suit prayers. He contended, inter alia, that the mother had executed Ext.X5/B1 Will dated 30.10.1982 bequeathing all her properties and assets, including her bank deposits and other amounts due to her as per court decrees, to him absolutely. The said Will was deposited as a closed Will in the Office of the District Registrar, Thiruvananthapuram. After the death of the mother, the Will was opened on 21.11.1994 on his Application, and the same was registered as Deed No.203/1994. Ext.X5 Will come into effect on the date of death of the mother on 01.11.1994. Defendant No.5 has effected mutation of the immovable properties mentioned in the said Will in his name and also paid land revenue tax for the same. The bank deposits in the name of the mother with Syndicate Bank, Local, Thiruvananthapuram, have also been transferred in his name. The Plaint Schedule 2025:KER:72736 RFA NO. 177 OF 2018 9 properties absolutely belong to the Defendant No.5 in full ownership, and they are not partible as claimed in the Plaint. The Defendant No.5 was the youngest son of the parents, and he has been living with them at Jagathy House, Shanghumugham, Thiruvananthapuram. The parents died of heart attack that occurred on account of the stress and strain of the litigations initiated against them by the Plaintiff. The Defendant No.5 looked after the parents in their old age, living with them till their death. The parents had already given substantial properties and assets to the Plaintiff and the Defendants 1 to 4 within Thiruvananthapuram city worth several crores of rupees. Huge amounts were given to the Plaintiff and Defendant No.1 for starting their independent business in contracts and to Defendant No.2 for starting N.C. Hospital. Very valuable gold ornaments and money were given to the Defendant Nos. 3 & 4 at the time of their marriage by the 2025:KER:72736 RFA NO. 177 OF 2018 10 parents. The residential property at Shanghumugham, given to Defendant No.5, was already burdened with heavy liabilities due from the father to Syndicate Bank, Thiruvananthapuram. It was charged with a mortgaged debt by deposit of title deed for a loan availed by the father for his business purpose. It was attached and charged with a decree debt in O.S. No.113/1979 filed by the Syndicate Bank before the Sub Court, Thiruvananthapuram. The Plaintiff has filed the suit with the intention of wreaking his vengeance on Defendant No.5 since he stood with his father and mother in the matter of several litigations filed by the Plaintiff against them and lived with them till their last days.
8. Since the Defendant No.5 filed Written Statement raising contentions on the strength of Ext.X5 Will, the Defendant Nos.1 to 4 filed separate Written Statements dated 03.01.1996, 29.11.1995, 06.12.1995, 14.02.1996 and the Plaintiff filed Replication dated 14.07.1996 challenging Ext.X5 Will. The 2025:KER:72736 RFA NO. 177 OF 2018 11 Defendant No.5 filed additional Written Statement dated 03.11.1999 also.
9. The Defendant No.1 filed Written Statement contending, inter alia, that Defendant No.5 and DW5 conspired for mutual benefit and DW5 has scribed the Will. DW5, who is an Advocate, used to appear for the mother in several litigations. Mother used to sign papers presented and approved by DW5 without any further clarification. DW5 betrayed the confidence reposed in him by the mother. Ext.X5 Will is a fraudulent Will, which was a bait of DW5 for making use of the same for Defendant No.5 for his illegal means. The attestors to Ext.X5 are not genuine. Mother was not properly identified before the Sub Registry. The alleged Will was procured by forgery, fraud and impersonation. The alleged Will was not scribed as dictated by the mother, nor was it read out to her by the scribe for the approval of the mother as stated therein. If, by any reason, it is found that the signature 2025:KER:72736 RFA NO. 177 OF 2018 12 of the testator in the Will resembles that of the mother, the Will is vitiated by fraud and it was brought into existence without the knowledge of the mother by playing fraud on her somehow or other. The Will is vitiated by fraud, coercion, undue influence, misrepresentation, mistake and importunity. The entire Plaint Schedule properties have to be partitioned in six equal shares and the Plaintiff and Defendants are entitled to get 1/6 share each, as the mother died intestate. Though father had certain liabilities, he regained his financial status when the litigation ended in his favour with respect to the contract works. The father got release of all his landed properties that stood hypothecated, which included the properties that stood in the name of the mother. As advised by the father, the mother executed settlement deeds in favour of the Defendant Nos. 2, 3 and 4. Father executed a settlement deed in favour of the Plaintiff. Father endowed Rs.8 lakhs in cash to mother for her 2025:KER:72736 RFA NO. 177 OF 2018 13 financial security and also as a gesture of affection for parting the landed properties in favour of the children. Father was concerned with the future of the Defendant No.5. He felt it was unwise to register any fixed asset in favour of the Defendant No.5 before a source of income was established for him. He had protected the interest of Defendant No.5 under the registered Will.
10. The Defendant No.2 filed Written Statement contending, inter alia, that Ext.X5 Will is a fabrication brought into existence without the deceased knowing its contents. It is not a genuine document. It is a false document brought into existence by Defendant No.5 with the help of his personal friends and associates who had figured as attestors with the sole object of acquiring all the assets left behind by the Testator. Ext.X5 is not signed by Gouri Ponnamma. DW5, who is alleged to have been the scribe to the Will, is a total stranger to the Testator on the 2025:KER:72736 RFA NO. 177 OF 2018 14 alleged date of execution of the Will. All his contacts with the family during those days were only through the Defendant No.1. He had no direct contact with the Testator, nor had any occasion to repose her confidence in him. The Will is not properly executed. It does not represent the wishes of either the Testator or her husband, who always shared his assets equally among the children. During the later part of 1982, Gouri Ponnamma had some mental tension and was suffering from serious ailments like Diabetes, Angina and hypertension and most of the other ailments for which she was under the management of Defendant No.2. She was incapable of making any disposition of any of her assets by writing a Will. She was incapable of exercising any free will of her mind or doing any act of volition by herself. The reason for the sudden collapse of the health condition of Gouri Ponnamma was due to the mental agony caused to her by Defendant No.5, who not only cheated her and 2025:KER:72736 RFA NO. 177 OF 2018 15 obtained money by fraudulent means, forging her signature, but also obtained lakhs of rupees from the Bank and gone to the extent of making false document showing that she is made partner in a joint venture business along with him. Since the entire assets are allotted to Defendant No.5 as per Ext.X5 Will, it is an unfair and unjust disposition of property. This alone is sufficient to raise suspicion about the execution of the Will. There is no chance for the mother to give her entire property to the Defendant No.5 since the mental strain caused to her by the Defendant No.5 was too much and the money which he had swindled by defrauding her was very heavy which she was well aware that all the children got equal right over it. If it is found that the signature of the Testator in the Will resembles that of Gouri Ponnamma, the Will is vitiated by fraud, coercion, undue influence, misrepresentation and mistake and the Testator was not acting on her own free will. Defendant No.2 is also entitled 2025:KER:72736 RFA NO. 177 OF 2018 16 to get 1/6 share over the Plaint Schedule Properties and prayed for partition and separate possession of 1/6 share in the Plaint Schedule Properties.
11. The Defendant No.3 filed Written Statement contending, inter alia, that Gouri Ponnamma died intestate. She never thought of executing any document during her lifetime regarding her assets and she never executed any document whatsoever. The execution and registration of the Will is a concocted story made by the Defendant No.5. No circumstance has arisen for such execution of a Will during her lifetime. The vessels valued at more than Rs.5 lakhs, which were given to the Defendant No.3 by the father, were kept in Jagathy House, Shanghumugham, while the Defendant No.3 was in America, were not given back by the Defendant No.5, who is residing in the said house. Defendant No.3 reserves her remedy to get those articles/vessels through appropriate proceedings. Defendant 2025:KER:72736 RFA NO. 177 OF 2018 17 No.3 is entitled to get a decree allowing 1/6 share in the Plaint Schedule Properties.
12. The Defendant No.4 filed Written Statement contending, inter alia, that all the properties owned by the mother during her lifetime were that of the father, either earned by him in the name of the mother or derived by her as per Ext.B19 Will executed by the father. During the lifetime of the father, he had executed Wills and Settlement Deeds in favour of his wife, children and relatives. Ext.B19 is the last Will. By Ext.B19, after acknowledging and endorsing the earlier documents executed by him, he bequeathed all the wealth and assets which remained in his name and those which remained to be received and realised by him in favour of the mother. The properties bequeathed by the father as per Ext.B19 Will in favour of the mother was only as a trustee for the benefit of both herself as well as her children. The intention of the father was to safeguard 2025:KER:72736 RFA NO. 177 OF 2018 18 her interest and domination in the family and after her death the properties should be inherited by the children. The intention of the mother was also that. Mother died intestate. Defendant No.5 got Ext.X5 Will registered quite secretly on 21.11.1994. The said act was after notice of the suit and order of injunction dated 16.11.1994 passed by the Court. Without giving breathing time and with extreme secrecy, he has effected mutation of all the immovable properties in his name and paid revenue tax for it. He filed Applications for impleading in the pending litigations, claiming to be the sole legal heir of the mother. He attempted to transfer bank accounts/deposits from the name of the mother to his name. Ext.X5 Will is a forged document created by Defendant No.5 and the scribe. The Defendant No.4 emphatically says that her mother was never a chicken-hearted lady to execute a closed Will. Though she was illiterate, she was brave and of a dominating nature. Above all, the possibility of 2025:KER:72736 RFA NO. 177 OF 2018 19 the execution of a Will in 1982 by her is an impossibility. The situation and atmosphere were never favourable for that. She never kept anything secret from Defendant No.4. In every matter and even in simple matters, she used to get opinion from Defendant No.4. She was having full trust and confidence in Defendant No.4. The Defendant No.4, Defendant No.5 and the mother were moving together in a quite cordial and cooperative manner and doing things after deliberations. The Defendant No.5 suddenly withdrew from the company of the Defendant No.4. Practically, he was trying to evade her. The scribe, who was also keeping a very good relationship with Defendant No.4 was also adopting an evading policy. The Defendant No.4 came to know from Ext.X5 Will that the properties bequeathed by the father to the Defendant No.4 as per Ext.B20 Will are also included in Ext.X5 Will. It is found that the said property was included in the application for grant of Letters of Administration, 2025:KER:72736 RFA NO. 177 OF 2018 20 and hence, in the Letters of Administration to Ext.B19 Will granted by the District Court. Since the property happened to be included in the Application from which O.S.No.9/1977 arose, the Defendant No.4 believes that it was an inadvertent mistake committed while preparing the Application. Mother would have never meant to include the property already bequeathed to the Defendant No.4. In Ext.B19 Will, there is no schedule of properties, but it is made clear that the properties covered by the Wills and Settlement Deeds already executed are excluded in Ext.B19 Will. Since Defendant No.5 has claimed the said property on the basis of Ext.X5 Will and effected mutation of the property which is in the ownership and possession of Defendant No.4, she is constrained to take necessary steps to remedy the mistakes in separate proceedings. The right of half of the movables in Jagathy House bequeathed as per Ext.B23 Will in favour of Defendant No.4 by the father is also seen included in 2025:KER:72736 RFA NO. 177 OF 2018 21 Ext.X5 Will. The Defendant No.4 alone has the absolute right over the said movables. Father had not executed Ext.B19 Will. So the Defendant No.5 cannot claim properties on the basis of Ext.X5 Will, as there is no derivative title to the Testator. Ext.X5 Will is a document created by the Defendant No.5 and the scribe with the help of his clients and henchmen. It is a fabricated and fraudulent document. Mother had no opportunity to know about the said Will. The said Will was not prepared as instructed by the mother. The statement that the Will was prepared by the scribe as per the instructions of the mother is an utter falsehood and a fraudulent one. The Will can either be by forging the signature of the mother or by using blank papers entrusted to the Defendant No.5 and the scribe for the purpose of the cases pending in various courts. It is an unconscionable Will and unenforceable. Mother had no intention at all, even in her wild dreams, to disinherit her children and give the entire properties 2025:KER:72736 RFA NO. 177 OF 2018 22 to the Defendant No.5 alone. The Will is void and unenforceable. The Defendant No.5 has misappropriated not less than Rs.150 lakhs, which came into the hands of the mother as dues to the father. He is bound to answer and account for the same. Though in the Will and in the pleadings of the Defendant No.5, he says about the burden and debt, not even a single pie has been lost to him and spent by him. All his assets are that of the father and the mother alone. He was gifted with the most valuable property, with a palatial building, Jagathy House, which is worth more than double of all that are settled and gifted to the Defendant No.4. There is no liability falling on him on account of the father and mother. The Defendant No.5 can never become the sole proprietor of N.C. and Company. The Defendant No.4 is entitled to get the share and profits of the said company, as the mother was the principal partner following the father. The Defendant No.5 is not entitled to get it on the basis 2025:KER:72736 RFA NO. 177 OF 2018 23 of the Ext.X5 fraudulent Will. He is entitled to get only 1/6 share of the properties included in the plaint. The Defendant No.4 is entitled to get 1/6 share of all the wealth and assets left by her father and mother and included in the plaint schedule. The claim of the Defendant No.5 that he had looked after the father and mother is a hollow one. On the other hand, he was enjoying life like anything under their care and with their assets. He earned more than enough from them both directly and indirectly. The Will is not at all a document executed, signed or deposited by the mother. It is an impossibility. The Will is to be declared as void. A Decree is to be passed, allowing 1/6 share of all the properties left by the mother to Defendant No.4. The Defendant No.4 is entitled to get half of the movables kept in Jagathy House and described in Ext.B23 Will executed by the father.
13. The Plaintiff filed Replication contending, inter alia, Gouri Ponnamma had not executed any Will. The Will relied on by the 2025:KER:72736 RFA NO. 177 OF 2018 24 Defendant No.5 is forged, fabricated, illegal and improper. It is brought into existence at the instance of the Defendant No.5 and the Scribe for obtaining undue enrichment. It is not binding on the plaintiff or other shares of the property and the properties are to be partitioned in accordance with the law of succession governing the parties. The attestors of the Will are not known to Gouri Ponnamma and are known to be the stooges and clients of the scribe. The ugly haste shown by the Defendant No.5 in registering and effecting mutation itself will show the dirty intention of the Defendant No.5. The statement that the Defendant No.5 is the sole owner of the company is totally wrong. The N.C. and Company had assets worth several lakhs of rupees. The Defendant No.5 has misappropriated the entire assets of the firm and he is bound to account in this suit, the amounts he has misappropriated. Property given to the 2025:KER:72736 RFA NO. 177 OF 2018 25 Defendant No.5 was several Crores. Debts due to the properties were cleared by father.
14. As per the Order dated 21.08.2004 in I.A. No.5829/1998, the Defendant No.1 was transposed as Additional 2nd Plaintiff. The Original Plaintiff and the Additional 2nd Plaintiff are hereafter referred to as the 'Plaintiff No.1' and 'Plaintiff No.2' respectively.
15. The Defendant No.5 had filed I.A.No.4860 of 1999 under Order XVIII Rule 3A of the CPC to permit him to adduce evidence after examining the witnesses on his side. The said Application was dismissed by the Trial Court. The matter was carried in revision to this Court in C.R.P. No.374 of 2000 and the same was dismissed. The Defendant No.5 filed Civil Appeal No.6102 of 2000 before the Hon'ble Supreme Court. Before the Supreme Court, the Defendant No.5 changed his stand and declared that he has no intention to examine himself as a witness. Based on 2025:KER:72736 RFA NO. 177 OF 2018 26 the said submission, the Hon'ble Supreme Court passed the following order.
"Learned counsel for the appellant has stated before us which is also recorded earlier in our order dated 14.7.2000 that the appellant does not desire to appear as a witness in this suit. In view of this, the very question of the priority of his examination first loses its credence. In view of this, the court may proceed to examine the evidence in terms of Sections 67 and 68 of India Evidence Act. Hence no question of insisting upon the appellant to be examined first arises now".
16. In the first round of trial, the Plaintiffs examined PWs.1 and 2 and marked as Exts.A1 to A35(a). PW1 is the Plaintiff No.2 and PW2 is the daughter of PW1. The Defendant No.4 was examined as DW7. The Defendant No.5 examined DWs 1 to 6 and marked Exts. B1 to B50 and Exts.X1 to X8. DW1 is the District Registrar in charge, who brought the records before the Court. DW2 was the District Registrar in charge on 01.11.1982 before whom Ext.X5 Will is alleged to have been deposited.
2025:KER:72736 RFA NO. 177 OF 2018 27 DW3 was the then District Registrar, who gave charge to DW2. DW4 is the attestor to Ext.X5 Will. DW5 is an Advocate of Thiruvananthapuram Bar, who is the scribe of the Ext.X5 Will. DW6 is the District Registrar who was summoned to produce the Receipt Books and other documents which were not produced by DW1.
17. The Trial Court had dismissed the suit as per the Judgment and Decree dated 21.08.2004, holding that Ext.X5 Will was executed by the mother, Gouri Ponnamma, out of her own free will and consent, thereby bequeathing all the Plaint Scheduled Properties to the Defendant No.5 and he is the absolute owner of the same. The Trial Court upheld Ext.X5 Will mainly holding that Gouri Ponnamma was having a sound disposing mind on the alleged date of execution of Ext.X5 Will; that the Propounder has discharged his burden to prove the execution of the Will by examining DWs.1 to 5; that the evidence of DW4 and DW5 2025:KER:72736 RFA NO. 177 OF 2018 28 could be relied on as a whole, especially because DW5 is admittedly a senior advocate of the bar; and that there is no suspicious circumstances in existence as alleged by the Plaintiff and Defendants Nos.1 to 4 in the creation of Ext.X5 Will.
18. The Plaintiffs and the supporting Defendants filed R.F.A. Nos.552 & 620 of 2004, 540 of 2005 and 40 of 2006 in this Court and the Division Bench of this Court disposed of all the appeals by a common judgment dated 05.03.2013 setting aside the judgment and Decree of the Trial Court dated 21.08.2004 and remanding the matter back to the Trial Court for fresh disposal after affording both sides opportunity to adduce further evidence, if they choose. This Court held that the evidence adduced by the propounder of the Will must satisfy the judicial conscious of the court; that Law places a very heavy burden on the Defendant No.5 to prove the due execution of the same to the satisfaction of the Court; that when there are suspicious 2025:KER:72736 RFA NO. 177 OF 2018 29 circumstances, the Court has to look into the entire surrounding circumstances and probabilities; that the evidence placed on record is insufficient to enter into a definite finding; and that on going through the evidence and the impugned judgment, this Court is of the view that the Trial Court has not taken serious note of the same. This Court noticed that the following questions remain unanswered, though the Defendant No.5 is legally bound to discharge his burden of explaining the same:
i) How did the fifth Defendant get possession of Exhibit X2 [Ext.X6(a)] receipt?
ii) How, when and from whom did the fifth Defendant get information regarding Exhibit X5 Will?
iii) Whether the fifth Defendant was aware of the contents of Ext.X5 Will before its opening on 21.11.1994 so as to exclude the presence of other heirs at the time of opening?
iv) How did the fifth Defendant get an impression that deceased 2025:KER:72736 RFA NO. 177 OF 2018 30 Ponnamma was in enemical terms with other children especially DW7, PW1, D2 etc.
v) How did the fifth Defendant get information that deceased Ponnamma consulted Venkitachalam Iyer before execution of the alleged Will as suggested?
vi) How did the fifth respondent get information that the other parties to the case got information of Ext.X5 Will before filing of this case ?
19. After remand, the Defendant No.5 filed I.A.No.1534/2016 for excusing delay of 15 days for taking pre-trial steps, I.A.No.1535/2016 for summoning the District Registrar, Thiruvananthapuram for production of thumb Impression Register for the period covering November, 1982 which bears the original thumb impression of Gouri Ponnamma at page 78 of the Register, I.A.No.1536/2016 directing the Plaintiffs and Defendant Nos.2 to 4 to produce the original of Exts.B18, B25, 2025:KER:72736 RFA NO. 177 OF 2018 31 B26 and B28 Settlement Deeds executed by Gouri Ponnamma in their favour which were in their custody, I.A.No.1537/2016 to send the original of Exts.X1, X3, B18, B25, B26 and B28 to the Director, State Finger Print Bureau, Pattam, Thiruvananthapuram and directing to analyse and report whether the admitted thumb impression in Exts.B18, B25, B26, B28 are the same or made by the same person whose thumb impression is found in Ext.X1 and the original of Ext.X3, I.A.No.1614/2016 to keep in abeyance the oral evidence of himself till the report of the Finger Print Bureau is obtained, I.A.No.1615/2016 to keep Ext.B18 in safe custody and IA.No.1836/2016 to summon the Sub Registrar, Chalai in Thiruvananthapuram to produce the Thumb Impression Register for the period covering between March and April 1975 which bears the original thumb impression of the executant of the Settlement Deed No.688/75 dated 31.3.1975, Settlement 2025:KER:72736 RFA NO. 177 OF 2018 32 Deed No.735/75 dated 7.4.1975 and Settlement Deed No.736/75 dated 7.4.1975 of Chalai Sub Registrar's Office, Thiruvananthapuram. The Court below by a Common Order dismissed all the Applications except allowing I.A.No.1534/2016 for excusing delay of 15 days for taking pre-trial steps.
20. The Defendant No.5 filed O.P.(C) No.1853/2016 in this Court challenging the said Common Order. The Plaintiff No.2 filed OP(C).No.2005/2016 challenging the dismissal of I.A.No.1632/2016 for appointment of receiver etc.
21. This Court disposed O.P.(C) No.1853/2016 and O.P.(C) No.2005/2016 by a common judgement dated 10.03.2017 allowing O.P.(C) No.1853/2016 in part and dismissing O.P.(C) No.2005/2016. This Court set aside the Orders in I.A.Nos.1535/2016,1537/2016 & 1836/2016 and allowed those Applications directing the District Registrar to produce the documents mentioned therein; directing the Trial Court to get 2025:KER:72736 RFA NO. 177 OF 2018 33 the assistance of the Director of State Finger Print Bureau for getting the enlarged prints of the finger prints which is required for comparison from the original document with the help of technology available with them and then after proving those documents through the witnesses and getting attested copy of those portions of the document from the Registrar marked through that witness and return the original to the Registrars concerned; directing the Trial Court to give instruction to the Director, State Finger Print Bureau, Thiruvananthapuram to complete the examination and submit the report. This Court set aside the order dismissing I.A.No.1614/2016 to the extent denying examination of the Defendant No.5 and sustaining the Order on all other aspects, permitting the Defendant No.5 to examine himself so as to explain the circumstances sought to be explained by him in the Remand Order in the RFAs making it clear that he is not permitted to adduce any evidence 2025:KER:72736 RFA NO. 177 OF 2018 34 regarding the execution of the Will while he is being in the box in order to fill up the lacunas in the evidence of the persons who have been examined on his side to prove the execution of the Will; directing the Trial Court to give an opportunity to the Defendant No.5 to examine other witnesses if any required by filing additional witness list, if he wants to examine the things sought to be explained by him by the Remand Order, further directing that after such evidence, the Plaintiff and other supporting Defendants also must be given an opportunity to adduce evidence to controvert the evidence adduced by the Defendant No.5 to prove their case and disprove the case of the Defendant No.5. It is held in the said judgment that Remand Order can be treated as change of circumstances warranting the Defendant No.5 to adduce evidence on certain aspects in respect of which suspicion has been raised by the Trial Court and remitted the case for the purpose of removal of the same 2025:KER:72736 RFA NO. 177 OF 2018 35 by the Defendant No.5 by giving opportunity to the parties to adduce further evidence; that the Trial Court was not justified in denying an opportunity for the Defendant No.5 to examine himself as party witness, but there is no necessity to postpone his evidence till the expert opinion is obtained and he needs only to prove those aspects which was described in Paragraph 18 of the Remand Order of this Court for which the expert opinion is not required.
22. After remand, DW7 was further examined. The Defendant No.5 examined himself as DW8, one Chartered Accountant who is the co-brother of the Defendant No.5, who was witness to Ext.B18 was examined as DW9, and the Fingerprint Expert was examined as DW10, who proved his Ext.X10 Report.
23. The Trial Court by the impugned judgment decreed the suit passing Preliminary Decree for partition of the Plaint A schedule properties, Plaint B Schedule properties and half share in the 2025:KER:72736 RFA NO. 177 OF 2018 36 Plaint C schedule Property belonged to Gouri Ponnamma among the Plaintiffs and the Defendants 2 to 5, allotting 1/6 share to each of them, holding that Ext.X5 Will is not the genuine Will of Gouri Ponnamma and Gouri Ponnamma died intestate.
24. I heard the Learned Senior Counsel for the Appellant, Sri. S. Sreekumar, instructed by Adv. Sri. Shyam Sekhar K.R., the Learned Senior Counsel for the Respondent No.1, Sri. S.V. Balakrishna Iyer, instructed by Adv. Sri. Thoufeek Ahamed, the Learned Senior Counsel for the Respondent No.2, Smt. Sumathi Dandapani, instructed by Adv. Sri. Millu Dandapani, the Learned Counsel for the Respondent No.4 Sri. V.A. Ajakumar and the Learned Counsel for the Respondents No.6 to 8, Sri. M. Sreekumar.
25. Learned Senior Counsel for the Appellant/Defendant No.5, Sri. S. Sreekumar contended that the Trial Court acted illegally in disbelieving Ext.X5 Will. The Trial Court misconstrued and 2025:KER:72736 RFA NO. 177 OF 2018 37 misunderstood the evidence of DW4 attesting witness and DW5 scribe. The Trial Court failed to appreciate the circumstances in which Ext.X5 Will was executed by the mother in favour of the Defendant No.5, from the right perspective. It is in evidence that all other children had been litigating with the parents and the Defendant No.5 alone had been looking after them during their old age. Learned Senior Counsel invited my attention to various litigations within the family - O.S. No.164/1976 filed by the Plaintiff No.1 against father claiming oral partnership of Kuttiyadi Project, O.S. No.1006/1977 filed the Plaintiff No.1 for Defendant No.3 as her power of attorney, against the mother and Defendant No.5 for permanent prohibitory injunction with respect to the property where father was buried thereby denying the mother to undertake periodical prayers therein, O.S. No.180/1977 filed by the Defendant No.3 for partition of the properties of father ignoring Ext.B19 Will executed by father and 2025:KER:72736 RFA NO. 177 OF 2018 38 L.A.(O.P.) No.92/1977 filed by mother for probate of Ext.B19 Will, which had to be converted into O.S. No.9/1977 on account of the opposition against probate. It is in evidence that all the children, except the Defendant No.5, were given enormous wealth. The only property given to the Defendant No.5 was the family house by name 'Jagathy' situated in Shanghumugham as per F Schedule in Ext.A20 Will of the father. The parents had been residing in the said house with Defendant No.5. The said property was burdened with liability, as the same was mortgaged in favour of Syndicate Bank for availing loan by the father for his business. It is quite natural that when other children were provided with sufficient assets by the parents, the remaining properties are given to the son who had derived virtually nothing. It is quite natural and highly probable that the mother bequeathed her properties in favour of one among the children who supported her. There are no suspicious 2025:KER:72736 RFA NO. 177 OF 2018 39 circumstances surrounding the execution of the Will. In order to keep the Will a secret, a sealed cover procedure was adopted by the mother. The contesting parties could not bring out any violation of the procedure for sealed cover or for registration. The Will was opened after the death of the mother, and it was duly registered. The Will was executed after complying with all the legal requirements for the same. The Defendant No.5, as the propounder of the Will, has discharged his burden as required under Section 63(c) of the Indian Succession Act read with Section 68 of the Indian Evidence Act. The Defendant No.5 examined DW4, who was one of the attesting witnesses to Ext.X5 Will, and proved the execution of Ext.X5 Will by the Testator and attestation of the same by both the attestors. The evidence of DW4 could not be shaken in cross-examination. The Trial Court relied on minor discrepancies in her deposition to disbelieve her evidence. The Trial Court failed to consider the 2025:KER:72736 RFA NO. 177 OF 2018 40 fact that the witnesses were examined decades after the execution of Ext.X5 Will. The Trial Court even went to the extent of gauging the friendship of the Testator with DW4 with reference to the caste hierarchy of the parties. Though not required, the scribe of Ext.X5 Will was also examined as DW5. DW5 was a senior Lawyer and his evidence fully corroborated the evidence of DW4, the attesting witness. The thumb of Gouri Ponnamma on Ext.X5 is proved by Ext.X10 Report of DW10 Expert Witness, who compared it with the admitted thumb impression. The contesting parties did not have a specific or consistent case with respect to their challenge against Ext.X5. They alleged the lack of testamentary capacity, forgery and the presence of vitiating elements together vaguely without material details in support of the same. When the father had executed Ext.B19 Will bequeathing his properties in favour of the mother, the Defendant No.3 filed O.S. No.180/1977 seeking partition to 2025:KER:72736 RFA NO. 177 OF 2018 41 defeat Ext.B19 Will and the said suit, renumbered as O.S.No.2/1978, was dismissed as per Ext.B2 judgment, by which O.S. No.9/1997 filed by the mother was decreed, granting probate of Ext.B19 Will. The present suit is another attempt similar to O.S. No.2/1978. It is the admitted case of all the children that Gouri Ponnamma was a strong lady. She died about 12 years after executing Ext.X5 Will. Even though the contesting parties challenged the testamentary capacity of Gouri Ponnamma vaguely in their Written Statements, they did not prosecute such contention during evidence. Gouri Ponnamma executed a number of registered documents after Ext.X5 Will. Learned Senior Counsel cited the decisions of the Hon'ble Supreme Court in Shashi Kumar Banerjee v. Subodh Kumar Banerjee [AIR 1964 SC 529], Daulat Ram and Others v. Sodha and Others [(2005) 1 SCC 40], Sridevi v. Jayaraja Shetty [(2005) 2 SCC 784], Pentakota Satyanarayana and Others v. Pentakota Seetharatnam and 2025:KER:72736 RFA NO. 177 OF 2018 42 Others [(2005) 8 SCC 67], B. Venkatamuni v. C.J. Ayodhya Ram Singh and Others [(2006) 13 SCC 449], Meena Pradhan v. Kamla Pradhan [(2023) 9 SCC 734] and the decisions of this Court in Kallangadi Edathil Chathan Veettil Kumaran Kidavu and Another v. Niduvanchalil Keloth Damodaran Nair and Others [2013 (2) KHC 191] in support of his contentions.
26. Learned Senior Counsel for the Respondent No.1/Plaintiff No.1 Sri. S.V. Balakrishna Iyer contended that the Trial Court is perfectly justified in disbelieving Ext.X5 Will. The evidence of DW4, who was cited as one of the attesting witnesses, and DW5, who was cited as the scribe, is totally unreliable to prove the execution of Ext.X5 Will. There are several suspicious circumstances surrounding the execution of Ext.X5 Will. Those suspicious circumstances are not explained and removed by the propounder. Ext.X5 is an unnatural disposition of the remaining properties of the parents. Since all the children, including 2025:KER:72736 RFA NO. 177 OF 2018 43 Defendant No.5, were provided with sufficient assets by the parents, the mother would never bequeath the remaining properties in favour of Defendant No.5 to the exclusion of others. Father had purchased properties in the name of the wife of Defendant No.5 - Latha. PW1 specifically deposed that the father had purchased quarry property of 2.06 acres in the name of the wife of Defendant No.5 and the same was not disputed by Defendant No.5. Gouri Ponnamma had specifically stated in O.S.No.2/1978 that the children had been provided sumptuously. It is proved by Exts.B25, B26, B28, B29, B30, Settlement Deeds and Exts.B20 and B23 Wills. Defendant No.5 in his Written Statement admitted that father had received compensation. As DW8, he admitted that father had settled the liabilities. Hence, there could not be any liability on the most valuable Jagathy house, which is given to the Defendant No.5. It is the Defendant No.5 who had been residing with the mother 2025:KER:72736 RFA NO. 177 OF 2018 44 and misappropriating all the income of the mother, which includes amounts due to the father under various litigations, which was later obtained by the mother. The Defendant No.5 in his Written Statement admitted that Gouri Ponnamma realised the entire amount due under the Decree in O.S.No.25/1974. DW5 did not specifically deny on questioning whether the decree amount was around Rs.77 Lakhs. He admitted that he had entrusted the cheques received in O.P.(Arb) No.26/1971 to Gouri Ponnamma. It is in evidence that Gouri Ponnamma had no confidence in Defendant No.5. DW5 had no contact with Gouri Ponnamma at any time before the date of Ext.X5. Gouri Ponnamma had no confidence in DW5 to ask him to write the Will. The signatures in Ext.X5 Will, Ext.X1 Cover and Ext.X3 Register were not proved to be that of Gouri Ponnamma. The admitted signatures of Gouri Ponnamma were available before the Court in Exts.A7, A10, A11, A16, A17, A21, A23, B7 and B8 2025:KER:72736 RFA NO. 177 OF 2018 45 for obtaining a report from an expert. But no attempt was made by the propounder to prove the signature, when the contesting parties specifically pleaded forgery. Exts.A7, A10, A11, A13, A16, A17, A21, A23, B7, B8 and B24 would prove that Gouri Ponnamma used to sign with her name. Name is an integral part of her signature. But in Ext.X1 and X3, the sign does not contain the name. There is apparent difference of the signatures in Exts.X1 and X3 on comparison with the admitted signatures in Exts.A7, A10, A11, A13, A16, A17, A21, A23, B7, B8 and B24, even with naked eyes. No explanation is there as to why the signatures in Exts.X1 & X3 were not sent for expert evidence. Exts.X1, X3, X5 and Ext.B18 were the result of the plan conspired by Defendant No.5 with DW5 scribe running over the years to snatch the properties of the mother to the exclusion of all other legal heirs. The Defendant No.5 conspired with DW5 Advocate and caused the creation of Ext.X5, misusing the 2025:KER:72736 RFA NO. 177 OF 2018 46 signatures of Gouri Ponnamma in blank papers obtained under the pretext of using the same in pending litigations. Exts.A13, B7, B8 and B24 show 'x' markings. It would indicate the practice of signing blank papers by Gouri Ponnamma for using them for preparing pleadings in pending litigations. He got Ext.X5 deposited, forging the signature and thumb impression of Gouri Ponnamma through another person in the year 1982. Later, he caused to register Ext.B18 Bond in the year 1987 using the thumb impression of the person who affixed the thumb impression with the malicious intention to use the same for comparison with Ext.X5 to prove the thumb impression of Gouri Ponnamma. Two signatures made at the time of registration of Ext.B18 would clearly reveal that they were made by somebody else. A Bond does not require registration under Section 17(2)(vi) of the Indian Registration Act. No stamp duty is payable for a bond executed in favour of Civil Court. No thumb 2025:KER:72736 RFA NO. 177 OF 2018 47 impression is required for registration. Ext.B18 Bond was given in compliance with the direction of this Court in the Order dated 27.07.1987 in C.M.P. No.19633/1987 in A.S. No.194/1987. There was no direction in the said Order to execute a registered Bond. Though Exts.B34, B35 and B36 documents containing the thumb impressions of Gouri Ponnamma were available before the Court, Ext.B18 alone was purposefully sent to the expert as the admitted thumb impression. The thumb impression in Ext.B18 is not admitted to be the thumb impression of Gouri Ponnamma. Hence, Ext.X10 Report cannot be used as evidence for proof of thumb impression of Gouri Ponnamma in Exts.X1 and X3. Nobody was examined to prove that Gouri Ponnamma appeared before the Registrar on 01.11.1982 to deposit Ext.X1 Cover containing Ext.X5 and signed on Exts.X1 and X3. It is in evidence that the recitals in Ext.X5 that the Defendant No.5 was not given any property by 2025:KER:72736 RFA NO. 177 OF 2018 48 Gouri Ponnamma and that properties received by him from the father are heavily encumbered are incorrect. No document is produced to prove such encumbrance. In Ext.X5, the property having an extent of 2 acres 38.125 cents already bequeathed to the Defendant No.4 as per E Schedule of Ext.B20 is also included. If Ext.X5 was executed by Gouri Ponnamma, the said property would not have been included. Defendant No.5 and his family had been residing with Gouri Ponnamma in Jagathy House. He has no explanation as to where he was during the preparation and execution of Ext.X5 Will. It is unbelievable that Defendant No.5 did not know about the visits of the DW5 to the house for the preparation of Ext.X5. The contention of the Defendant No.5 is that Gouri Ponnamma wanted to keep the Will a secret, and hence, a closed cover procedure was adopted. Though DW4 deposed that Gouri Ponnamma wanted to keep the Will a secret and that the attestors are not known to 2025:KER:72736 RFA NO. 177 OF 2018 49 the children, she herself admitted that she knows Defendant No.5 and his wife. It is in evidence that DW5 is well known to the children as he had been appearing for some of the family members since the year 1977. Defendant No.5 deposed that soon after the deposit of the Will, Gouri Ponnamma told him about the Will and cautioned him not to tell anyone. But in the Written Statement, he has no case that he came to know about the Will before the death of Gouri Ponnamma. The close association of DW5 Scribe and Defendant No.5 is proved before the Court. If Gouri Ponnamma had any intention to execute a Will secretly, she would not have selected DW5. Over- enthusiasm of DW5 to uphold Ext.X5 Will is evident throughout his examination. His evidence would reveal that he entered into the box as a substitute for the propounder who stayed away from the witness box. DW5 was examined after 20 years of the execution of Ext.X5. Even then, he could depose the names, 2025:KER:72736 RFA NO. 177 OF 2018 50 including the initials of the attestors, even without looking into the Will. This would clearly prove the close contact of DW5 with the attestors. DW4 admitted that her husband, who is the other attesting witness, had an acquaintance with DW5 and that she was introduced to DW5 by her husband on the date of execution of Ext.X5. The evidence of DW4 would reveal that it is DW5 who had helped her in her civil case to find a lawyer in the High Court. Even though she feigned ignorance that Defendant No.5 was the Managing Partner of N.C. & Company and about the identity of Ramalingam Nadar, who was the Consultant Engineer of N.C. & Company. Ext.A2 judgment would reveal that Ramalingam Nadar signed a Report prepared by another, unduly favouring DW4. Defendant No.1 was in a position of active confidence with the parents, and hence, Gouri Ponnamma would not have disinherited him. The motive behind the preparation of Ext.X5 Will is that the Defendant No.5 shall 2025:KER:72736 RFA NO. 177 OF 2018 51 not be made answerable for swindling the mother of all her wealth, including Rs.8 lakhs entrusted to her by the father as a security deposit for her, soon after the execution of Exts.B25, B26 and B28 Settlement Deeds by her. There is a clear suspicion, as the first attesting witness in Ext.X5 was not examined. It is highly unbelievable that an uneducated lady like Gouri Ponnamma had instructed to deposit the Will, without seeking advice from any other person. The reluctance of Defendant No.5 to give evidence and offer him for cross- examination and prayer to defer his evidence until other witnesses are examined also creates serious doubts surrounding the execution of Ext.X5 Will. None of the suspicious circumstances referred to in the Remand Order was removed by the Defendant No.5. Learned Senior Counsel cited the decision of the Hon'ble Supreme Court in H. Venkatachala Iyengar v. B.N. Thimmajamma and Others [AIR 1959 SC 443] and Kavita Kanwar 2025:KER:72736 RFA NO. 177 OF 2018 52 v. Pamela Mehta and Others [AIR 2020 SC 2614], the Full Bench decision of this Court in Meenachil Panchayat v. Sivasankara Marar [2003 (2) KLT 914] and the decision of this Court in Ramachandran S. v. B. Bhanuvikraman Nair and Another [2017 (5) KHC 75] in support of his contentions.
27. Learned Senior Counsel for the Respondent No.2/Plaintiff No.2 Smt. Sumathi Dandapani advanced arguments supporting the submissions made by the Learned Senior Counsel for the Respondent No.1. Learned Senior Counsel for the Respondent No.2 tried to distinguish various decisions relied on by the Appellant, inviting my attention to the facts and circumstances available in each of the decisions for a better understanding of the legal principles laid down therein.
28. Learned Counsel for the Respondents Nos.4 & 5/Defendant Nos.3 & 4, Sri. V. Ajakumar advanced arguments supporting the submissions made by the Learned Senior Counsel for the 2025:KER:72736 RFA NO. 177 OF 2018 53 Respondent No.1. Learned Counsel took me to the oral and documentary evidence available in the case to disprove the execution of Ext.X5 Will and to substantiate suspicious circumstances surrounding the Will. Learned Counsel invited my attention to the definition of the word 'sign' in Section 3 (56) of the General Clauses Act,1897 and contended that in view of the said definition, the sign of Gouri Ponnamma includes her name also. It is admitted by DW5, who was a Senior Lawyer of Thiruvananthapuram Bar, that the signature of Gouri Ponnamma contains three components - 'Her Name in Malayalam', 'GPM' and 'Underline' under GPM. DW8 also deposed that Gouri Ponnamma signed by writing her name in Malayalam and 'GPM' in English. Ext.X1 Cover does not contain the said signature of Gouri Ponnamma. The Trial Court specifically found that the assets were equitably distributed among all the children and that the contention that all the 2025:KER:72736 RFA NO. 177 OF 2018 54 children except the Defendant No.5 were sumptuously provided by the parents is not correct. The Appellant has not taken any specific ground against the above finding of the Trial Court in the Appeal. Such contention of inequitable distribution before Ext.B19 Will is barred by res judicata as in O.S.No.2/1978 and O.S.No.9/1977, in which the challenge against Ext.B19 Will was involved. The mother and all the children, excluding Plaintiff No.1 and Defendant No.3, took a contention that all the children were given sumptuously and hence father executed Ext.B19 in favour of the mother. The finding of the Trial Court that all children were sumptuously provided assets and the remaining properties were bequeathed in favour of the mother was upheld in Ext.B4 Appellate Court judgment. Thereafter, there is no chance for the mother to state in Ext.X5 that Defendant No.5 was not given sufficient assets. Though Defendant No.5 alleged that all other children had been inhumanely harassing the 2025:KER:72736 RFA NO. 177 OF 2018 55 mother, the details of the harassment were neither pleaded nor proved. The evidence of DWs 8, 9 & 10, who were examined subsequent to the remand, is not sufficient to remove any of the six suspicious circumstances mentioned in the Remand Order. In the judgment of this Court in O.P.(C) Nos.1853 & 2005 of 2016, the evidence of Defendant No.5 is restricted to explaining the suspicious circumstances mentioned in the Remand Order alone and his evidence as DW8 could not be looked into to prove the execution and attestation of the Ext.X5 Will as required under Section 63 of the Indian Succession Act read with Sections 67 & 68 of the Indian Evidence Act. It is for the Defendant No.5, who is the propounder of Ext.X5 Will, to prove both the deposit and the execution of Ext.X5 Will, but he miserably failed to prove both. No witness was examined to prove the deposit. The evidence of DW2/District Registrar cannot be relied on to prove the presence of Gouri Ponnamma 2025:KER:72736 RFA NO. 177 OF 2018 56 before him, as he had no case that he personally knew her. The person who identified Gouri Ponnamma before DW2 should have been examined to prove the presence of Gouri Ponnamma before DW2. It is brought out in evidence that DW2 did not follow the Rules for deposit. The antecedents of DW2 are not satisfactory as evidenced by Ext.A1 Complaint. He even admitted that the endorsement on Ext.X1 Cover was made by him, which shows his active role in the forgery. Ext.X10 only proves that the thumb impression in Ext.X5 and Ext.B18 belonged to the same person. It does not prove that the said thumb impressions belonged to Gouri Ponnamma. DW5 is only a Scribe and his evidence cannot be treated as that of an attesting witness. Learned Counsel invited my attention to various contradictions and deficiencies in the evidence of DW4, who is cited as the Attesting Witness and DW5, who is cited as the Scribe. The oral evidence of DW4 as to the execution and 2025:KER:72736 RFA NO. 177 OF 2018 57 attestation of Ext.X5 was brought out through leading questions which have no evidentiary value at all. There are contradictions with respect to the details of the cover deposited and the cover that was taken out from safe custody. DW4 and DW5 deposed that Ext.X1 Cover was tied with twine lengthwise and widthwise before deposit, whereas the evidence of DW8 is that Ext.X1 Cover was not tied with twine. This would lead to the conclusion that the Cover, which was allegedly prepared at Jagathy House, was not the one that was deposited. The District Registrar who opened the Cover was not examined. DW4 admitted that when Gouri Ponnamma signed Ext.X5 Will, the signatures of her and her husband, Krishna Pillai, were there in the Will. DW5 has no case that the attestation endorsements in Ext.X5 were made by him. Though the first attestation endorsement was claimed to be made by the first Attesting Witness, he was not examined. Though the second attestation endorsement was claimed to be 2025:KER:72736 RFA NO. 177 OF 2018 58 made by DW4, who is the second Attesting Witness, she denied the same and stated that it was written by DW5. DW4 and her husband were proved to be the close associates of DW5 as DW4 had received undue help from DW5 in her own case before the High Court to create a false Commission Report through the employee of Defendant No.5 - Sri. Ramalingam Nadar. DW5 deposed the full names and address of the Attestors from memory after 20 years of execution of Ext.X5. It would prove that they are the close associates of DW5. Though DW4 claimed friendship with Gouri Ponnamma during temple visits and claimed to be a regular visitor to the house of Gouri Ponnamma, she was unable to state other friends obtained through temple visits, details of the surroundings and location of the house of Gouri Ponnamma and the details of the children of Gouri Ponnamma. Evidence of DW4 would reveal that she was not familiar with the signature of Gouri Ponnamma. No effort 2025:KER:72736 RFA NO. 177 OF 2018 59 was made by Defendant No.5 to prove the signature of Gouri Ponnamma in Exts.X1, X3 and X5 with the help of a Handwriting Expert. The mandate under Section 67 of the Indian Evidence Act is not satisfied. The evidence of PW1 and DW7, who are acquainted with the signature of the mother, that the disputed four signatures in Ext.X5 do not belong to their mother is liable to be accepted under Section 67 of the Indian Evidence Act. There are several corrections in Ext.X5 and the same are not attested or initialled by anybody. There are three different handwritings in Ext.X5 and different pens are used. Going by the case of the Defendant No.5, the first Attesting Witness in Ext.X5, Sri. Krishna Pillai, husband of DW4, is the predominant Witness who witnessed the deposit of Ext.X1 Cover. The non- examination of Sri. Krishna Pillai creates serious doubt. Though his medical condition is stated as a ground for non-examination, the same is proved to be false even from the evidence of DW4, 2025:KER:72736 RFA NO. 177 OF 2018 60 as DW4 admitted that he can walk, understand things and is capable of looking after his affairs by himself. The evidence of DW5 would show his over-enthusiasm to uphold Ext.X5 Will. He took the role of Defendant No.5 and gave evidence. Many documents which ought to have been marked through the Defendant No.5 were marked through DW5. The claim that DW5 was the Advocate of Gouri Ponnamma during 1982 is proved to be false, as DW5 admitted that he never appeared for Gouri Ponnamma exclusively before 1982. If his evidence is taken into consideration, he was disclosing privileged communication with his client in violation of Section 126 of the Indian Evidence Act. It is in evidence that DW5 was the Advocate of other family members since the year 1970 and in such circumstances, Gouri Ponnamma would not seek his assistance to prepare a secret Will. It is in evidence that the Attestors, the Scribe and the Officers who helped the Defendant 2025:KER:72736 RFA NO. 177 OF 2018 61 No.5 to prepare Ext.X5 Will are his close associates and they had no acquaintance with Gouri Ponnamma during 1982. It is highly unbelievable that illiterate Gouri Ponnamma dictated the Will to DW5, who is a Senior Lawyer, to scribe the same. DW5 admitted that he received lakhs of Rupees as a lawyer of Gouri Ponnamma after 1984 and claimed that those amounts were given to Gouri Ponnamma, but no evidence was produced in this regard. DW5 was in the habit of creating false documents as revealed from the Ext.A3 judgment. DW5 claimed tenancy over 28 acres of land assigned by the Government in favour of NSS to establish an educational institution, producing a fabricated lease deed. The Court found that the records produced by DW5 in support of the tenancy are fabricated and doubtful documents. A series of criminal cases were registered against DW5 and he was directed to keep peace and good behaviour under Section 107 of the Code of Criminal Procedure, 2025:KER:72736 RFA NO. 177 OF 2018 62 as revealed from Ext.A5(a) Charge Sheet and Exts.A6 & A6(a) Petitions submitted by the Sub Inspector of Police against DW5. The evidence of DW7 is that Gouri Ponnamma disliked the association of Defendant No.5 with DW5. The Defendant No.5 is called Raju in family circles, and the same is reflected in Exts.A12 and A20. If Gouri Ponnamma had scribed the Will, she would have used the name of the Defendant No.5 as Raju along with his official name in the Will. Defendant No.5 strangely claimed that it is his wife who issued receipts to him for payments made to his mother, but no such receipts were produced. At the same time, Defendant No.5 wanted to see that his wife was not examined in the case. It is an admitted fact that Defendant No.5 and his family had been residing with the mother at Jagathy House. It is claimed that he and his family were not there from 29.10.1982 to 02.11.1982. It is not disclosed why they were absent from the house on those days and 2025:KER:72736 RFA NO. 177 OF 2018 63 whether the possibility of their absence was known to the mother for arranging the execution of the secret Will during those days. The signature of Gouri Ponnamma in Ext.A34(a) nominating the Defendant No.5 to S.N. Trust is denied by DW5. In such a case, the forgery of the signature in Ext.A34(a) could only be done by its beneficiary, namely, Defendant No.5. Ext.A31 Bye-Laws of S.N. Trust would prove that no nomination can be made for hereditary trusteeship. Mother will not assign trusteeship in S.N. Trust to the Defendant No.5 as per Ext.X5 if the Defendant No.5 has already become a hereditary trustee as per Ext.A34(a) Letter dated 10.08.1981. The nature of the paper used for preparing Ext.X5 would also make it suspicious. It is an inferior quality paper having unusual size. It is a single sheet of paper folded into a foolscap paper. The same type of papers were used by DW5 for preparing various affidavits, statements of Gouri Ponnamma in the execution proceedings in 2025:KER:72736 RFA NO. 177 OF 2018 64 O.S.No.25/1974 & O.P.(Arb) No.26/1971. It is unbelievable that it is Gouri Ponnamma who provided all the paraphernalia for preparing Ext.X5 Will to DW5. The paper in which Ext.X5 is scribed is partially damaged. If a person intends to prepare a crucial document, he will select only the best paper. A scissor cut on the top of the paper is admitted by DW5 and he could not offer a proper explanation for the same. Several reasons are stated in Ext.X5 for executing the same, namely, Only the Defendant No.5 supported the Testator after the death of her husband; No assets were given by the Testator to the Defendant No.5; The assets given by the father are overburdened with liabilities; All children, except Defendant No.5, were given valuable properties which are sufficient for their well-being; and The Defendant No.5 has no income and he has heavy liabilities. All these reasons have been proved to be incorrect. Though DW5 claims that all the relevant documents for preparing Ext.X5 2025:KER:72736 RFA NO. 177 OF 2018 65 were given by Gouri Ponnamma, the evidence of DW4 contradicts the same. Ext.B19 Will was scribed by Venkitachalam Iyer, who was a close friend of the father. Venkitachalam Iyer was very close to the family members, including Gouri Ponnamma. It is highly unbelievable that Gouri Ponnamma did not utilise the service of Venkitachalam Iyer when she thought of executing a Will. A suggestion was put by the Defendant No.5 to DW7 in cross-examination that the mother talked with Venkitachalam Iyer for one hour at Medical College before executing Ext.X5. The said suggestion is beyond the pleadings and it is against the plea of high secrecy in the execution of Ext.X5. The facts and circumstances would clearly prove that there were no circumstances during the year 1982 compelling Gouri Ponnamma to bequeath all her properties to the Defendant No.5 alone. The Trial Court rightly disbelieved Ext.X5 Will and no ground is made to interfere. The Learned 2025:KER:72736 RFA NO. 177 OF 2018 66 Counsel cited the decisions of the Hon'ble Supreme Court in H. Venkatachala Iyengar (supra), Rani Purnima Debi and Another v. Kumar Khagendra Narayan Deb and Another [AIR 1962 SC 567], SMT Jaswant Kaur v. Amrit Kaur and Others [(1977) 1 SCC 369], Ram Piari v. Bhagwant and Others [(1990) 3 SCC 364], Varkey Joseph v. State of Kerala [1993 Supp (3) SCC 745], Janki Narayan Bhoir v. Narayan Namdeo Kadam [(2003) 2 SCC 91], B. Venkatamuni v. C.J. Ayodhya Ram Singh and Others [(2006) 13 SCC 449] and Chinu Rani Ghosh v. Subhash Ghosh and Others [MANU/SCOR/151646/2024] and the decision of this Court in Karunakaran v. Sreenivasan [1988 (1) KLT 505] in support of his contentions.
29. Learned Counsel for the Respondent Nos.6 to 8/Legal Heirs of the Defendant No.2, Sri. M. Sreekumar also made submissions supporting the contentions of the learned Senior Counsel for the Respondents 1& 2 and the learned Counsel for the Respondent Nos. 4 & 5. Learned Counsel for the Respondent Nos.6 to 8 2025:KER:72736 RFA NO. 177 OF 2018 67 further contended that the Defendant No.5 purposefully sought production of Exts.B25, B26 and B28 for comparison of the thumb impression of Gouri Ponnamma, fully knowing that those documents do not contain the thumb impression of Gouri Ponnamma, to create an impression that all his attempts to obtain the thumb impression of Gouri Ponnamma other than that contained in Ext.B18 were failed. Learned Counsel invited my attention to Exts.B34 to B36, which contained the thumb impressions of Gouri Ponnamma. No attempt was made by Defendant No.5 to send Exts.B34 to B36 to the Expert for comparison of the thumb impression. Proved or admitted samples alone are permissible for comparison under Section 45 of the Indian Evidence Act in view of Illustration 'C' therein. Learned Counsel invited my attention to the various contradictions between the evidence of DW4 and the evidence of DW5. Learned Counsel invited my attention to the evidence 2025:KER:72736 RFA NO. 177 OF 2018 68 of DW9, who was cited by Defendant No.5 to prove the execution of Ext.B18. The answer with respect to the thumb impression in Ext.B18 was obtained from him by putting a leading question. DW9 admitted that he did not see the execution of Ext.B18. He pleaded ignorance to the question as to when Gouri Ponnamma went to register Ext.B18. Learned Counsel invited my attention to various signatures in the produced documents, which are claimed to be those of Gouri Ponnamma, to show the difference in the signatures. Learned Counsel pointed out that there is only signature alone in Exts.X1 and X3, unlike other documents, which contain the name as part of the signature. Learned Counsel referred to the evidence of DW5 that the signature of Gouri Ponnamma contains the name in Malayalam and the sign and that he has not seen the sign without the name. Learned Counsel cited the decision of the 2025:KER:72736 RFA NO. 177 OF 2018 69 Hon'ble Supreme Court in Shashi Kumar Banerjee v. Subodh Kumar Banerjee [AIR 1964 SC 529] in support of his contention.
30. Learned Senior Counsel for the Additional Respondent No.9, Sri. Joseph Kodianthara, instructed by Advocate Sri. Abraham Joseph Markos, contended that on the strength Ext.X5 Will, the Defendant No.5 and certain others formed the Additional Respondent No.9 and constructed a Shopping Complex in the Plaint A Schedule Item No.1 property and another adjacent 10 cents belonging to the son of the Defendant No.5 by spending more than Rs.10 Crores after availing a loan of Rs.4 Crores from HDFC Bank. In case this Court finds that the Appeal is liable to be dismissed, the interest of the Additional Respondent No.9 in the final decree proceedings may be protected.
31. In reply, the Learned Senior Counsel for the Appellant contended that as per the law existing on the date of execution of Ext.B18 Bonds, which are given as security, are liable to be 2025:KER:72736 RFA NO. 177 OF 2018 70 registered. Learned Senior Counsel invited my attention to the Full Bench decision of this Court in R.M. Palat v. P.A. Nedungadi [1958 KLT 635] in this regard. In the said decision, it is held that the Security Bond executed in Form No.3 of Appendix G of the Code of Civil Procedure creates a mortgage and that in view of Sections 4 & 59 of the Transfer of Property Act, 1882 and Section 49 of the Registration Act,1908 - quite apart from Section 17 of the latter Act - such a Bond has to be registered where the principal money secured is one hundred rupees or upwards in order to affect any immovable property comprised therein. The subsequent Full Bench decision of this Court in Meenachil Panchayat (supra) changing the law laid down in R. M. Palat (supra), came subsequent to the execution of Ext.B18. Hence, Ext.B18 was registered as required under the law existing as on the date of its execution, otherwise, it would have been invalid. Learned Senior Counsel further contended that the 2025:KER:72736 RFA NO. 177 OF 2018 71 evidence of PW2 relied on by the learned Counsel for the respondents to prove non-execution of Ext.X5 on 30.10.1982 is thoroughly unreliable, as her presence in the house of Gouri Ponnamma on the relevant date is proved to be false. The Trial Court has also not relied on the evidence of PW2. Learned Senior Counsel cited the Division Bench decision of this Court in Leela Devi K.R. (Dr.) v. K.R. Rajaram [2025 (4) KLT 114], in which it is held that genuineness of a Will and factum of its execution or registration cannot be determined solely on the evidence produced by the propounder and that in addition to oral and documentary evidence, Court must consider the surrounding circumstances, inherent improbabilities, and the nature and contents of the document; that in a case where the witness cited to prove the Will under Section 69 of the Evidence Act establishes that he had witnessed the Testator and the witnesses signing the Will, it is sufficient proof that the 2025:KER:72736 RFA NO. 177 OF 2018 72 attestation by the attesting witnesses is in their handwriting and that the signature of the Testator is in that person's handwriting; that it constitutes sufficient compliance with Section 69 and that when the witness deposes that he saw the executant and the attesting witnesses sign the document in question, it amounts to the proof required under Section 69. On the strength of this decision, the learned Senior Counsel contended that the evidence of DW4 alone is sufficient to uphold the Ext.X5 Will. When Plaintiff No.2 gave evidence as PW1, he did not have a case of impersonation of Gouri Ponnamma. Signature of Gouri Ponnamma in Ext.B18 is admitted by PW1. PW1 admitted that he filed the Written Statement only after verification of Ext.X5. In the Written Statement, he does not have any dispute with respect to the sign in Ext.X5. Hence, there was no need to compare the signature of Gouri Ponnamma in Ext.X5. When the Defendant No.4 gave evidence as DW7, she also admitted 19 2025:KER:72736 RFA NO. 177 OF 2018 73 signatures of Gouri Ponnamma in Ext.B18. No suggestion was put to DW8 that there was impersonation before the Registrar for Gouri Ponnamma. In view of Section 58 of the Indian Evidence Act, facts admitted need not be proved. The Defendant No.5 had taken all earnest efforts to summon the documents having thumb impression of Gouri Ponnamma by summoning Exts.B25, B26 & B28. When Exts.B25, B26 & B28 were summoned, other parties did not have a case that other documents were available. There could not be any dispute regarding the identity of the person who signed on Ext.X1 Cover as the same was done before DW2 Registrar. PW1 pleaded ignorance whether Gouri Ponnamma appeared before the Registrar for executing Ext.B18. There could not be any dispute regarding the identity of the person who appeared before the Registrar for registering Ext.B18. Section 34(3) of the Registration Act mandates the Registrar to satisfy the identity of 2025:KER:72736 RFA NO. 177 OF 2018 74 the person. There is a presumption under Section 114(e) of the Evidence Act that official acts have been regularly performed. Learned Senior Counsel cited the decision of the Madras High Court in V. Kalaivani and Others v. M.R. Elangovan and Others [MANU/TN/4465/2024], dealing with a 'stock witness' by explaining the term as referring to a person who is repeatedly called upon to give evidence in several criminal cases at the instance of police authorities. It is held that the term stock witness is not applicable to civil proceedings, especially in testamentary matters and that merely because the witnesses are allegedly available at the Sub Registrar Office and they attest several documents that are presented for registration for payment would not in any way belittle the evidentiary value of their attestation to the Will. Even though the Plaintiff contended in the Replication that Gouri Ponnamma was with Defendant No.4 during the time when Ext.X5 was alleged to have been 2025:KER:72736 RFA NO. 177 OF 2018 75 executed, Defendant No.4 did not have such a case when she was examined as DW7. Learned Senior Counsel invited my attention to Exts.A7, A8, A9, A10, A11, A13, A15, A16, A17, A18, B7, B8, B14, B15 & B17 to show that DW5 had been appearing for Gouri Ponnamma for various cases and she had a close acquaintance with DW5 to avail his service for preparing Ext.X5 Will. In O.S.No.180/1977, though 12 acres of land at Alamcode was included, seeking partition, the Defendant No.4 had no contention that 2.38 acres out of it belonged to her. 15 Acres 8.5 cents is included in the schedule in Ext.B3. Exts.B46 and B47 Demand promissory Notes executed by the father, mother and defendant No.5 would prove that they availed the loan. Exts.B10 plaint and B9 judgment in O.S.No.113/1979 instituted by the Syndicate Bank would prove an equitable mortgage of the Jagathy house property. Ext.B9 was decreed for Rs.3,48,415.92. In Ext.B7 Inventory in O.S.No.9/1977, the 2025:KER:72736 RFA NO. 177 OF 2018 76 liability outstanding is Rs.5,91,021/-. It shows that Defendant No.5 had liability. Even though it is alleged that Gouri Ponnamma had withdrawn huge amounts as per the decrees in O.S.No.25/1974, O.P.(Arb) No.26/1971 and O.S. No.1/1975 filed by the father, there is no evidence for it. The only amount received as per the Decree in O.S.No.25/1974 is Rs.33,45,486/- as per Ext.B18. There is no evidence with respect to the balance decree debt. Rs.43,55,091/- received towards the award in O.P.(Arb) No.26/1971 is still under deposit. There is no evidence as to what happened to O.S.No.1/1975. It is the evidence of DW7 that Gouri Ponnamma will obtain acknowledgements for payments to others. There are no acknowledgements proving the alleged payments to Defendant No.5 by Gouri Ponnamma. Exts.B19 and B23 Wills prove that the parents are looked after by the Defendant No.5. In Ext.A34(a), the Defendant No.5 is not nominated. The request was for permitting the Defendant No.5 2025:KER:72736 RFA NO. 177 OF 2018 77 to act as the representative of Gouri Ponnamma who was the Trustee. Ext.A34(b) also shows that Defendant No.5 is only a representative. Hence, the trusteeship was included in Ext.X5. I.A. No.3/2019 is filed to accept two documents - the Death Certificate of Venkitachalam and Copy of C.R.P. No.110/2005 challenging the Order in I.A. refusing to revoke Letters of Administration. Learned Senior Counsel concluded his arguments, praying to allow the appeal, setting aside the impugned judgment and decree passed by the Trial Court and dismissing the suit with costs.
32. I have considered the rival contentions, gone through various precedents cited before me and perused the records of the case.
33. Firstly, I may examine the precedents cited by both sides to cull out the legal principles which are applicable to the case on hand.
2025:KER:72736 RFA NO. 177 OF 2018 78
34. Let me start with the classic decision of the Hon'ble Supreme Court in H. Venkatachala Iyengar (supra), which is relied on by both sides. In the said decision, it is held that as in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty and the test to be applied would be the usual test of the satisfaction of the prudent mind in such matters. It is useful to extract Paragraph Nos.19 & 20 of the said decision.
"19. However, there is one important feature which distinguishes wills from other documents. Unlike other documents the will speaks from the death of the Testator, and so, when it is propounded or produced before a Court, the Testator who has already departed the world cannot say whether it is his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed Testator. Even so, in dealing with the proof of wills the Court will start on the same enquiry as in the case of the proof of documents. The Propounder would be called upon to show by 2025:KER:72736 RFA NO. 177 OF 2018 79 satisfactory evidence that the will was signed by the Testator, that the Testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the Testator's mind and his signature as required by law, Courts would be justified in making a finding in favour of the Propounder. In other words, the onus on the Propounder can be taken to be discharged on proof of the essential facts just indicated.
20. There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the Testator may be very shaky and doubtful and evidence in support of the Propounder's case that the signature in question is the signature of the Testator may not remove the doubt created by the appearance of the signature; the condition of the Testator's mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the Testator; the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant 2025:KER:72736 RFA NO. 177 OF 2018 80 circumstances; or, the will may otherwise indicate that the said dispositions may not be the result of the Testator's free will and mind. In such cases the Court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the Testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, Courts would be reluctant to treat the document as the last will of the Testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the Testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter."
35. Referring to inaccurate statements in the Will, the Hon'ble Supreme Court further held in H. Venkatachala Iyengar (supra) that the manner in which the several recitals have been made in the 2025:KER:72736 RFA NO. 177 OF 2018 81 will amounts to a suspicious circumstance which must be satisfactorily explained by the appellant.
36. The decision of the Constitutional Bench of the Hon'ble Supreme Court in Shashi Kumar Banerjee (supra) was cited by the learned Senior Counsel for the appellant to substantiate the point that minor discrepancies in the evidence of the Attesting Witness shall not destroy the value of his evidence. Learned Senior Counsel for the appellant and the Counsel for the Respondent Nos.6 to 8 relied on Paragraph 5 of the said decision, in which the cardinal principles with respect to the proof of Will are discussed following the decision of the Hon'ble Supreme Court on Will in H. Venkatachala Iyengar (supra). It is advantageous to extract Paragraph 5 for better understanding.
5. The principles which govern the proving of a will are well settled; (see H. Venkatachala Iyengar v. B. N. Thimmajamma, 1959 Supp (1) SCR 426 : AIR 1959 SC 443, and Rani Purniama Devi v. Khagendra Narayan Dev, 1962 (3) SCR 195 : AIR 1962 2025:KER:72736 RFA NO. 177 OF 2018 82 SC 567). The mode of proving a will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a will by S. 63 of the Indian Succession Act. The onus of proving the will is on the Propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and the signature of the Testator as required by law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the Propounder to explain them to the satisfaction of the Court before the Court accepts the will as genuine. Where the caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same. Even where there are no such pleas but the circumstances give rise to doubts, it is for the Propounder to satisfy the conscience of the Court. The suspicious circumstances may be as to genuineness of the signature of the Testator, the condition of the Testator's mind, the dispositions made in the will being unnatural improbable or unfair in the light of relevant circumstances or there might be other indication in the will to show that the Testator's mind was not free. In such a case the Court would naturally expect that all legitimate suspicion should be completely removed before the document is accepted 2025:KER:72736 RFA NO. 177 OF 2018 83 as the last will of the Testator. If the Propounder himself takes part in the execution of the will which confers a substantial benefit on him, that is also a circumstance to be taken into account, and the Propounder is required to remove the doubts by clear and satisfactory evidence. If the Propounder succeeds in removing the suspicious circumstances the Court would grant probate, even if the will might be unnatural and might cut off wholly or in part near relations. It is in the light of these settled principles that we have to consider whether the appellants have succeeded in establishing that the will was duly executed and attested."
37. Learned Senior Counsel for the Appellant cited the decision of the Hon'ble Supreme Court in Daulat Ram (supra), in which the suspicious circumstance surrounding the Will pointed out was that the Testator had thumb-marked the second Will, whereas the earlier Will had been signed by him. The Hon'ble Supreme Court found that the second Will executed by the Testator has been proved to be genuine and validly executed by him, holding that the burden to prove that the Will was forged or was obtained 2025:KER:72736 RFA NO. 177 OF 2018 84 by undue influence or by playing a fraud was on the appellants, which they have failed to discharge.
38. Learned Senior Counsel for the Appellant cited the decision of the Hon'ble Supreme Court in Sridevi (supra), in which it is held that the onus to prove the Will is on the Propounder and in the absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and proof of the signature of the Testator, as required by law, need be sufficient to discharge the onus; that proof in either case cannot be mathematically precise and certain and should be one of satisfaction of a prudent mind in such matters and that in case the person contesting the Will alleges undue influence, fraud or coercion, the onus will be on him to prove the same.
39. Learned Senior Counsel for the Appellant cited the decision of the Hon'ble Supreme Court in Pentakota Satyanarayana (supra), in which the Hon'ble Supreme Court held that the evidence 2025:KER:72736 RFA NO. 177 OF 2018 85 adduced by the appellant Propounder is sufficient to satisfy the conscience of the court of law that the Will was duly executed by the Testator finding that no evidence has been led in by the respondents to show the exercise of any fraud or undue influence at the time of execution of the Will and no evidence was adduced to show that the Testator was not in sound state of mind.
40. Learned Senior Counsel for the Appellant cited the decision of the Hon'ble Supreme Court in B. Venkatamuni (supra), in which it is held that while arriving at a finding as to whether the Will was duly executed, the Court must satisfy its conscience having regard to the totality of the circumstances of the particular case.
41. Learned Senior Counsel for the Appellant cited the decision of the Hon'ble Supreme Court in Meena Pradhan (supra) to substantiate the legal propositions that Will is not required to be proved with mathematical accuracy, but the test of satisfaction 2025:KER:72736 RFA NO. 177 OF 2018 86 of the prudent mind has to be applied and that suspicious circumstances must be 'real, germane and valid' and not merely 'the fantasy of the doubting mind' and that whether a particular feature would qualify as 'suspicious' would depend on the facts and circumstances of each case.
42. Learned Senior Counsel for the Appellant cited the decision of this Court in Kallangadi Edathil Chathan Veettil Kumaran Kidavu (supra), in which this Court dealt with the sealed cover procedure for the deposit of a closed Will. This Court held that there is no prescription that the Registrar should initial on the outer side of the sealed cover in which Will is enclosed for deposit nor of affixing the seal of the Registrar on such cover; that the Courts below have wrongly taken the absence of initial and also seal of Registrar on the outer cover as one among the circumstances to doubt the genuineness of the Will and that the mandate under Section 43 of the Registration Act noted above is that the 2025:KER:72736 RFA NO. 177 OF 2018 87 Registrar should satisfy that the person presenting the same for deposit is the Testator or his/her agent. It is also held that if the contesting parties had any case that the thumb impression and also the signature appearing on in the sealed cover is not that of Testator, they should have taken steps to substantiate the challenge.
43. Learned Senior Counsel for the Respondent No.1 cited the decision of this Court in Ramachandran S. (supra) in which this Court considered the effect of leading questions and held that leading questions in re - examination should not have been allowed; that the inference is that if leading questions had not been put, the witness would not have given the same answers; that in such case, the evidence is not voluntary; that bringing out material facts by asking leading questions in the examination in chief is suicidal and it is self goal; and that the 2025:KER:72736 RFA NO. 177 OF 2018 88 answers given in answer to the leading questions put in the examination in chief are liable to be discarded.
44. In the decision of the Hon'ble Supreme Court in Kavita Kanwar (supra) cited by the Learned Senior Counsel for the Respondent No.1, following the classic decision of the Hon'ble Supreme Court on Will in H. Venkatachala Iyengar (supra), it is held that an unfair disposition of property or an unjust exclusion of legal heirs, particularly the dependants, is regarded as a suspicious circumstance; that an individual factor may not be decisive but, if after taking all factors together, conscience of Court is not satisfied that Will in question truly represents last wish and propositions of the Testator, Will cannot get the approval of Court; that when Will is surrounded by suspicious circumstances, Court would expect that legitimate suspicion should be removed before document in question is accepted as the last Will of the Testator.
2025:KER:72736 RFA NO. 177 OF 2018 89
45. Learned Senior Counsel for the Respondent No.1 cited the Full Bench decision of this Court in Meenachil Panchayat (supra) to substantiate the point that Bonds produced as security in Court are part of the judicial proceedings and hence not liable to be registered.
46. In Rani Purnima Debi (supra) cited by the learned Counsel for the Respondent Nos.4 & 5, the Hon'ble Supreme Court held that if a Will has been registered, that is a circumstance which may, having regard to the circumstances, prove its genuineness, but the mere fact that a will is registered Will not by itself be sufficient to dispel all suspicion regarding it where suspicion exists, without submitting the evidence of registration to a close examination; that registration may take place without the executant really knowing what he was registering; that when signature of Testator not appearing to be his usual signature and the Testator was in habit of signing blank papers, the 2025:KER:72736 RFA NO. 177 OF 2018 90 Propounder is to satisfactorily explain suspicious circumstances before he could get letters of administration.
47. In SMT Jaswant Kaur (supra) cited by the learned Counsel for the Respondent Nos.4 & 5, the Hon'ble Supreme Court held that when execution of the Will is shrouded in suspicion, its proof ceases to be a simple lis between the plaintiff and the defendant; that it is impossible to reach the satisfaction of the Court unless the party which sets up the Will offers a cogent and convincing explanation of the suspicious circumstances surrounding the making of the Will.
48. In Ram Piari (supra) cited by the learned Counsel for the Respondent Nos.4 & 5, after referring to the ratio in Malkani v. Jamadar [AIR 1987 SC 767], it is held that omission to mention reason for disinheriting the daughter or taking prominent part by beneficiary by itself was not sufficient to create any doubt about the testamentary capacity, but the Hon'ble Supreme Court 2025:KER:72736 RFA NO. 177 OF 2018 91 observed that even though it cannot be said to be hard and fast rule yet when disinheritance is amongst heirs of equal degree and no reason for exclusion is disclosed, then the standard of scrutiny is not the same.
49. In Varkey Joseph (supra) cited by the learned Counsel for the Respondent Nos.4 & 5, the Hon'ble Supreme Court held that leading question to be one which indicates to the witnesses the real or supposed fact which the prosecutor (plaintiff) expects and desires to have confirmed by the answer; that leading question may be used to prepare to give the answers to the questions about to be put to him for the purpose of identification or to lead him to the main evidence or fact in dispute; that the attention of the witness cannot be directed in chief examination to the subject of the enquiry/trial; that the Court may permit leading question to draw the attention of the witness which cannot otherwise be called to the matter under enquiry, trial or 2025:KER:72736 RFA NO. 177 OF 2018 92 investigation; and that the discretion of the court must only be controlled towards that end but a question which suggest to the witness, the answer the prosecutor expects must not be allowed unless the witness, with the permission of the court, is declared hostile and cross examination is directed thereafter in that behalf.
50. In Janki Narayan Bhoir (supra) cited by the learned Counsel for the Respondent Nos.4 & 5, the Hon'ble Supreme Court held that Section 71 of the Indian Evidence Act has no application to a case where one attesting witness, who alone has been summoned, has failed to prove the execution of the Will and other attesting witnesses though are available to prove the execution of the same, for the reasons best known, have not been summoned before the Court; that it is clear from the language of Section 71 that if an attesting witness denies or does not recollect execution of the document, its execution may 2025:KER:72736 RFA NO. 177 OF 2018 93 be proved by other evidence; that in a case where an attesting witness examined fails to prove the due execution of will as required under Clause (c) of Section 63 of the Succession Act, it cannot be said that the Will is proved as per Section 68 of the Evidence Act; that it cannot be said that if one attesting witness denies or does not recollect the execution of the document, the execution of Will can be proved by other evidence dispensing with the evidence of other attesting witnesses though available to be examined to prove the execution of the Will.
51. The learned Counsel for the Respondent Nos.4 & 5 cited the decision of the Hon'ble Supreme Court in Chinu Rani Gosh (supra) to substantiate the point that when the evidence of the Propounder lacks material particulars so as to conclude that there is proof of the Will in accordance with law, it is to be held that the very execution of the Will is surrounded by suspicious circumstances which have not been erased by the Propounder.
2025:KER:72736 RFA NO. 177 OF 2018 94
52. In Karunakaran (supra) cited by the learned Counsel for the Respondent Nos.4 & 5, this Court followed the decision of the Patna High Court Chandrashwar v. Bisheshwar (AIR 1927 Patna 61) and held that the credit of a witness may be impeached as provided under Section 155 of the Evidence Act; that the fact that a witness was not believed in a judgment in another case cannot be used against him in a subsequent case; that the former judgment cannot be given in evidence for the purpose of impeaching the credit of a witness; and that as the judgments in other cases are relevant only under Sections 40 to 43 of the Evidence Act the credit of a witness cannot be impeached by confronting him with a judgment in another case.
53. Let me examine the facts of the case in the light of the legal principles enunciated by the Hon'ble Supreme Court and this Court in the aforesaid decisions. Every case has got its own unique facts and circumstances. The general principles cannot 2025:KER:72736 RFA NO. 177 OF 2018 95 be applied uniformly to all cases having different facts and circumstances. Court has to approach the factual situation in each case keeping in mind principles of law for adjudication of the dispute.
54. In this suit for partition of the properties belonging to mother Gouri Ponnamma, the Defendant No.5 alone contested. The only defence is on the strength of Ext.X5 Will, the Certified copy of which is marked as Ext.B1. He is the Propounder of the Will, and other parties to the suit are the Contesters of the Will. The Defendant No.5 produced Ext.B1 copy of the will on 15.12.1994 along with his Counter Affidavit in I.A.No.5737/1994 filed by the plaintiff seeking temporary injunction. There is no quarrel with respect to the fact that the Plaint schedule properties belonged to Gouri Ponnamma at the time of death.
55. Let me state certain admitted facts: The parents of the Plaintiffs and the Defendants did not have even a formal education.
2025:KER:72736 RFA NO. 177 OF 2018 96 N. Chellappan started his life as a Helper to Mason in the year 1940, later became a Mason and then became a Contractor in the year 1950. Gouri Ponnamma was a housewife. N. Chellappan undertook several heavy contract works and amassed huge wealth. He had occasional financial setbacks. The Plaintiff No.2 is the eldest son. He became a Civil Engineer and joined the PWD of the State. Later, he resigned from his job and joined with contract work of father. Subsequently, he started an independent contract business. The Plaintiff No.1 is the second son. He joined with the business of the father initially. Later, he became an Electrical Engineer and went to the USA and settled there. The Defendant No.2 is the third son who became a Medical partitioner and who started N.C. Hospital at Jagathy, Thiruvananthapuram. The Defendant No.3 is the fourth child and the elder daughter who married a Medical practitioner and settled in the USA. The Defendant No.4 is the fifth child 2025:KER:72736 RFA NO. 177 OF 2018 97 and the younger daughter who also married a Medical practitioner after graduation. The Defendant No.5 is the sixth child and the youngest son who passed only Matriculation. In the year 1976, he became a partner of N.C. and Company, established by his father, as revealed from Ext.A24. Immediately after the death of the father, N.C. and Company was reconstituted with the Defendant No.5 and the mother as partners as per Ext.A25 and the same continued till the death of the mother. All the properties were acquired by the father and the mother out of the income from the contract works. Father executed his first Will as Ext.A20/B32 dated 10.05.1973 distributing some of the assets to the children as per Schedules A to F therein. Father executed Ext.B23 Will dated 20.06.1975 with respect to F Schedule in Ext.A20 in favour of the Defendant No.5 alone. Father executed Exts.B29 and B30 Settlement Deeds in favour of Plaintiff Nos.2 and 1 respectively on 2025:KER:72736 RFA NO. 177 OF 2018 98 01.12.1975. Mother executed Ext.B26 Settlement Deed dated 31.03.1975 in favour of the Defendant No.3 and Exts.B25 & B28 Settlement Deeds dated 07.04.1975 in favour of the Defendants Nos.4 & 2 respectively. No property was settled in favour of the Defendant No.5. But he was made a partner of N.C. and Company along with the father, with effect from 02.03.1976, as revealed from Ext.A24. Father executed Ext.B19 Will dated 10.08.1976 bequeathing his remaining properties to the mother. Probate is granted to Ext.B19 Will as per Ext.B2 judgment dated 30.06.1981 in O.S.No.9/1977. The Plaint A Schedule Properties are the immovable properties included in Ext.B19 Will.
56. When a Will is challenged in Court, the Court has to ensure the testamentary capacity of the Testator, proof of execution and attestation of the Will and non-existence of any of the vitiating elements. The Court has to ensure the non-existence of any of 2025:KER:72736 RFA NO. 177 OF 2018 99 the vitiating elements in order to come to the conclusion that the Testator executed the Will of his free will and consent. The Hon'ble Supreme Court in H. Venkatachala Iyengar (supra) categorically held that if the exercise of undue influence, fraud or coercion is alleged in respect of the execution of the Will propounded, such pleas may have to be proved by the parties making such allegations. If there are legitimate suspicious circumstances surrounding the execution of the Will, it is the burden of the Propounder to remove the same completely. As held by the Hon'ble Supreme Court in the decision in Meena Pradhan (supra), Will is not required to be proved with mathematical accuracy, but the test of satisfaction of the prudent mind has to be applied and that suspicious circumstances must be 'real, germane and valid' and not merely 'the fantasy of the doubting mind' and that whether a particular feature would qualify as 'suspicious' would depend on the facts and 2025:KER:72736 RFA NO. 177 OF 2018 100 circumstances of each case. It is well settled that any and every circumstance is not a "suspicious" circumstance. A circumstance would be "suspicious" when it is not normal or is not normally expected in a normal situation or is not expected of a normal person. The Hon'ble Supreme Court held in P.P.K. Gopalan Nambiar v. P.P.K. Balakrishnan Nambiar and Ors.[1995 Supp (2) SCC 664], it is the duty of the Propounder of the Will to remove all the suspected features, but there must be real, germane and valid suspicious features and not fantasy of the doubting mind.
57. The Defendant No.2 alone contended a lack of testamentary capacity for the Testator at the time of Ext.X5 Will. It is seen that such contention was not prosecuted. All the Counsel for contesting respondents submitted that the respondents do not dispute the testamentary capacity of Gouri Ponnamma. Ext.X5 Will is dated 30.10.1982 and Gouri Ponnamma died on 01.11.1994. After the date of Ext.X5, admittedly, Gouri 2025:KER:72736 RFA NO. 177 OF 2018 101 Ponnamma has executed several documents and pleadings. Hence, the question of the lack of testamentary capacity of Gouri Ponnamma does not arise for consideration in this case.
58. The question of the existence of any of the vitiating elements arises only if the execution of the Will by the Testator is proved. Though the Defendant Nos.1, 2 and 4 pleaded the existence of vitiating elements, the material particulars in support of the same are not pleaded. No evidence in this regard was adduced. In view of this, I find that they are not serious with respect to the contention regarding the existence of vitiating elements. Hence, the question of the existence of any of the vitiating elements does not arise for consideration even if the execution of the Will by the Testator is proved.
59. The remaining question to be considered is proof of the execution and attestation of Ext.X5 Will. Since Ext.X5 Will is a closed Will deposited with the Registrar, the proof of deposit is 2025:KER:72736 RFA NO. 177 OF 2018 102 also a matter to be proved for proving the execution of Ext.X5 Will.
60. The contention of the learned Senior Counsel for the Appellant is that the Contesters to the Will do not have a consistent case regarding the execution of Ext.X5 Will. It is seen from the Written Statements of Defendants Nos.1 to 4 and the Replication of the Plaintiff that all of them denied execution of Ext.X5 Will by Gouri Ponnamma. All of them alleged forgery and impersonation. Even if there is no contention in this regard, it is the duty of the Defendant No.5, who is the Propounder of Ext.X5 Will, to prove the execution of the Will as required under Section 63 of the Indian Succession Act, 1925 read with Section 67 of the Bharatiya Sakshya Adhiniyam, 2023 corresponding to Section 68 of the Indian Evidence Act, 1872. The contention of the learned Senior Counsel for the Appellant is that none of the suspicious circumstances are pleaded or proved by the 2025:KER:72736 RFA NO. 177 OF 2018 103 Contesters, and hence, there are no suspicious circumstances surrounding the execution of the Will. I am unable to accept the said contention. There is no requirement in law that suspicious circumstances are matters to be pleaded. It is for the parties challenging the Will who have to make out suspicious circumstances from the facts and circumstances of the Will. Suspicious circumstances could be made out even from the documents or from cross-examination of the Propounder or his witnesses, even without any evidence from the Contesters. The Court may infer suspicious circumstances on its own from the facts and circumstances presented before it. My view is fortified with the decision of the Constitutional Bench of the Hon'ble Supreme Court in Shashi Kumar Banerjee (supra), in which it is held that even where there are no such pleas but the circumstances give rise to doubts, it is for the Propounder to satisfy the conscience of the Court. An individual factor may not be 2025:KER:72736 RFA NO. 177 OF 2018 104 decisive. Conscience of the Court is to be satisfied after taking all factors together. The Court must satisfy its conscience, having regard to the totality of the circumstances of the particular case. Since the acceptance of a Will is a matter of the judicial conscience, the question to be considered by the Court is whether the evidence led by the Propounder of the Will is such as to satisfy the conscience of the Court that the Will was duly executed by the Testator.
61. Let me examine whether the execution of the Ext.X5 by Gouri Ponnamma is proved by the Propounder. Ext.X5 contains only the signatures of Gouri Ponnamma and not the thumb impressions of Gouri Ponnamma. Ext.X1 Cover is used for the deposit of Ext.X5 Will, and Ext.X3 Register contains both signature and thumb impressions. Signatures in Ext.X1 and X3 do not contain the name of Gouri Ponnamma in Malayalam. In all other admitted signatures of Gouri Ponnamma, including the 2025:KER:72736 RFA NO. 177 OF 2018 105 signatures in Ext.X5, the name of Gouri Ponnamma in Malayalam is an integral part of her signature. The signature marks 'GP' in Ext.X1 and X3 have a glaring difference from the signature marks 'GP' which is part of the admitted signatures of Gouri Ponnamma. The difference is so apparent that it is visible even to the naked eye and nobody would be able to say that the signature marks 'GP' in Exts.X1 and X3 is put by Gouri Ponnamma when compared to the admitted signatures of Gouri Ponnamma. DW5, who was a Senior Lawyer of Thiruvananthapuram Bar, who scribed Ext.X5, admitted that the signature of Gouri Ponnamma contains her name in Malayalam and that he has not seen her sign without her name. When this creates strong suspicion as to the authorship of the signature marks in Exts.X1 and X3, no attempt was made by the Propounder to prove the signatures in Exts.X1, X3 and X5 with the help of a Hand-Writing Expert. It leads to the conclusion that 2025:KER:72736 RFA NO. 177 OF 2018 106 the signature marks in Ext.X1 and X3 were put by a person other than Gouri Ponnamma. The Hon'ble Supreme Court in H. Venkatachala Iyengar (supra) held that when the alleged signature of the Testator may be very shaky and doubtful, the evidence in support of the Propounder's case that the signature in question is the signature of the Testator may not remove the doubt created by the appearance of the signature. The thumb impressions in Exts.X1 and X3 could be affixed only by the person who had signed those documents. It could not belong to Gouri Ponnamma. Though the learned Senior Counsel for the Respondent No.1 contended that Ext.B18 Bond does not require registration and it was registered unnecessarily with fraudulent intention to use the same for comparison, I am of the view that the said contention is unsustainable as the Full Bench decision of this Court in R.M. Palat (supra) was prevailing as on the date of execution of Ext.B18 declared that Security Bonds 2025:KER:72736 RFA NO. 177 OF 2018 107 given in judicial proceedings have to be registered where the principal money secured is one hundred rupees or upwards in order to affect any immovable property comprised therein and as the later Full Bench decision of this Court in Meenachil Panchayat (supra) holding that Security Bonds given in judicial proceedings do not require registration came only subsequent to the execution of Ext.B18. But the Witnesses to Ext.B18 are the close relatives of the Defendant No.5, namely, his wife and co-brother, who was examined as DW9 after remand. The Propounder as DW8 even went to the extent of deposing that he can say as to who were the identifying witnesses in Ext.B18 only after verifying it, when they are his wife and co-brother. DW8 pleaded ignorance of the amount received as per Ext.B18. It would show that he was not disclosing the true facts before the Court. DW9 is an interested witness. The answer that DW9 had seen Gouri Ponnamma affixing thumb impression was 2025:KER:72736 RFA NO. 177 OF 2018 108 obtained by putting a leading question to him. There is no evidentiary value for such an answer to the leading question. After remand, the Propounder proved that the thumb impressions in Exts.X1 and X3 and the thumb impression in Ext.B18 Bond were made by the same person as per Ext.X10 Report of the Expert who was examined as DW10. But that would not prove that all these thumb impressions belonged to Gouri Ponnamma. In Ext.B18, though the two signatures on the reverse of the first page made at the time of registration of the same contain the name of Gouri Ponnamma in Malayalam, there also, the difference is so apparent and glaring that it is visible even to the naked eye and nobody would be able to say that the signature in Ext.B18 is put by Gouri Ponnamma when compared to the admitted signature of Gouri Ponnamma. If that be so, the thumb impression in Ext.B18 is also not put by Gouri Ponnamma. The Propounder selected Ext.B18 alone for the 2025:KER:72736 RFA NO. 177 OF 2018 109 sample thumb impression of Gouri Ponnamma, when the admitted thumb impressions of Gouri Ponnamma were available in Exts.B34 to B36 Documents. As contended by the Counsel for the respondents, a proved or admitted sample alone is permissible for comparison under Section 45 of the Indian Evidence Act in view of Illustration 'C' therein. Ext.B18 does not contain a proved or admitted sample thumb impression of Gouri Ponnamma. The Propounder could have summoned the original of Exts.B34 to B36 Documents. I find considerable force in the contention of the counsel for the respondents that the Propounder purposefully sought production of Exts.B25, B26 and B28 for comparison of Thumb impression of Gouri Ponnamma fully knowing that those documents do not contain the thumb impression of Gouri Ponnamma, to create an impression that all his attempts to obtain the thumb impression of Gouri Ponnamma other than contained in Ext.B18 were 2025:KER:72736 RFA NO. 177 OF 2018 110 failed. The Propounder filed I.A.No.1615/2016 to keep Ext.B18 under safe custody. It would show his over-concern over Ext.B18 to send it as a sample for thumb impression when he was able to procure other documents having the thumb impressions of Gouri Ponnamma. I am of the view that thumb impressions in Exts.X1, X3 and B18 do not belong to Gouri Ponnamma with all probability. It is clear that the deposit of Ext.X5 Will is not made by Gouri Ponnamma. Though there are two witnesses in Ext.X1 for the deposit of Ext.X1, nobody was examined to prove the deposit. The learned Senior Counsel for the Appellant relied on the evidence of DW2, District Registrar, to prove the deposit of Ext.X1 Cover. The evidence of DW2 that the Cover was deposited by Gouri Ponnamma was obtained by putting a leading question. DW2 had no case that Gouri Ponnamma was personally known to him. DW2 stated that the identity of Gouri Ponnamma was satisfied. During the year 2025:KER:72736 RFA NO. 177 OF 2018 111 1982, there was no means for the Registrar to confirm the identity of the person with reference to any Identity Card. The Registrar could have only relied on the identification made by the Witness before him. DW2 admitted that the identity is confirmed by the Witnesses. DW2 could not recollect the details of the appearance of the person who deposited Ext.X1. In such circumstances, the evidence of DW2 alone is not sufficient to prove the identity of the person who deposited Ext.X1 Cover. The Propounder ought to have examined the Witnesses in the Ext.X1 Cover to prove the deposit. Of course, the mere production of Ext.A1 complaint against DW2 is not sufficient to doubt his character. But why the deposit was made on a day when DW2 acted as a Registrar in charge is also doubtful in the facts and circumstances of the case. I find that the Propounder has not proved the deposit of Ext.X1 Cover by Gouri Ponnamma before the Registrar.
2025:KER:72736 RFA NO. 177 OF 2018 112
62. DW4 and DW5 deposed that Ext.X1 Cover was tied with twine lengthwise and widthwise before deposit, whereas the evidence of DW8 is that Ext.X1 Cover was not tied with twine. DW2 deposed that it was sealed with 'araku' and does not say about any twine. DW8 pleaded ignorance of the existence of twine on the Ext.X1 Cover at the time of opening. On a perusal of Ext.X1 Cover, 'araku' seals with 'NC' impression are there. There is no sign that it was tied with twine. If the Ext.X1 Cover was tied with twine lengthwise and widthwise, the impression of the twine would have been there on the seals. Such impressions are absent. Even assuming that a Cover was sealed at Jagathy House as deposed by DW4 and DW5, it was not the said Cover which was deposited with the Registrar. This material contradiction also creates suspicion.
63. Let me then examine Ext.X5. Ext.X5 is written on a foolscap paper. It is not having a standard size. It is not a good quality 2025:KER:72736 RFA NO. 177 OF 2018 113 paper. A scissor cut on the top of the paper is apparent. Scissor cut on the top of the paper is admitted by DW5 Scribe. DW5 deposed that the Paper is provided by Gouri Ponnamma. He could not offer an explanation for the same. DW5 stated that the scissor cut might have been done by Gouri Ponnamma. It is hard to believe that Gouri Ponnamma decided to write such an important document in her life by choosing such inferior-quality paper. It is hard to believe that Gouri Ponnamma provided the paper for writing the Will to the Scribe, who is a Senior lawyer. It may create a strong suspicion that Ext.X5 Will is created on a paper signed blank by Gouri Ponnamma for using it for some other purpose. It is in evidence that Gouri Ponnamma used to give blank signed papers for preparing pleadings in the pending litigations. DW5 deposed that Ext.X5 Will is prepared as dictated by Gouri Ponnamma. It is hard to believe that Gouri Ponnamma, who was an illiterate lady, dictated the terms of the 2025:KER:72736 RFA NO. 177 OF 2018 114 Will to DW5, who was a Senior Lawyer, and DW5 prepared it as dictated by Gouri Ponnamma. These factors create suspicion with respect to the creation of Ext.X5.
64. DW4 is cited as one of the attesting witnesses to Ext.X5. She claimed that she was a close friend of Gouri Ponnamma. DW5 and DW8 deposed that DW4 was a close friend of Gouri Ponnamma. Several material answers in the chief examination are obtained from DW4 by putting leading questions. DW4 deposed that she and her husband have known Gouri Ponnamma since the year 1963; that she got first acquainted with Gouri Ponnamma at Shanghumugham temple. Though she claimed she got acquainted with several persons in the temple, she could not tell their names and addresses. She could not tell about the various Poojas in the said temple, though she claimed to be a regular visitor therein. She deposed that she does not know the children of Gouri Ponnamma, their names and when 2025:KER:72736 RFA NO. 177 OF 2018 115 their marriage was. Though she claimed that she had seen Gouri Ponnamma during the period 1963 to 1969, she pleaded ignorance to the suggestion that from 1963 to 1965 Gouri Ponnamma and Chellappan had been residing at Kuttiyadi in Kozhikode. Though she claimed she had gone to the house of Gouri Ponnamma several times after 1975, she admitted that she could not state the purposes of the visits. She was unable to state the distance from the Shanghumugham temple to the house of Gouri Ponnamma. Though she stated that the house is on the roadside, she could not state the name of the road or the direction of the front of the house or any of the establishments near the house. She could state the details of the house. She does not even know the place of death of Gouri Ponnamma. She did not go on the death of Gouri Ponnamma. She stated that she was called for attestation since Gouri Ponnamma was particular that the witness should be a person 2025:KER:72736 RFA NO. 177 OF 2018 116 unknown to the children. Later, she said that the Propounder is known to her as he was introduced by Gouri Ponnamma and that she has an acquaintance with the wife of the Propounder. At one stage, she stated her husband does not know DW5, and at another stage, she stated that DW5 was introduced to her by her husband on the date of Ext.X5. The evidence of DW4 would prove that she did not have any kind of acquaintance with Gouri Ponnamma.
65. DW4 admitted that she is unable to identify the signature of Gouri Ponnamma or part of her signature without the name under it. She does not know whether the signature is in English or Malayalam. Though DW4 claimed that she and her husband accompanied Gouri Ponnamma to the District Registrar's Office, she admitted that she did not witness Gouri Ponnamma putting her signature before the Registrar and that she had witnessed Gouri Ponnamma putting her signature only in the 2025:KER:72736 RFA NO. 177 OF 2018 117 Will. She deposed that the attestation endorsement was not written by her and it is written by DW5. But DW5 deposed that attestation endorsements are written by the husband of DW4 and DW4, respectively. DW4 even deposed that when Gouri Ponnamma signed the Document, it had the name and signature of DW4 and the signature of her husband. This evidence would prove that the Witnesses have not attested signature of Gouri Ponnamma. The evidence of DW4 is far from satisfactory to prove the execution of Ext.X5 by Gouri Ponnamma.
66. The evidence of DW4 would show that she had a close acquaintance with the Propounder earlier. She deposed that she does not know retired Chief Engineer, Ramalingam Nadar; that she does not know whether he had given any help to her case; that she does not know whether her husband knows him; that she does not know whether he had come to her house and 2025:KER:72736 RFA NO. 177 OF 2018 118 inspected the properties; and that she does not know whether he was the Consulting Engineer of N.C. and Company. Then she admits that a Report is given by Ramalingam Nadar; that Engineer by name Purushothaman had inspected her house and premises; that she does not know how the Plan prepared by Engineer Purushothaman was produced in the High Court for her in S.A. No.264/1981 with the signature of Ramalingam Nadar and that she does not know whether the Propounder was the Managing Partner of N.C. and Company. The evidence of PW1 and DW7 would prove that Ramalingam Nadar was associated with N.C. and Company during the period the father was the Managing partner and after the death of the father. These evidence of DW4 would highly probabilize that the Propounder had extended undue help to DW4 to produce a false Report in her case in the High Court through his employee 2025:KER:72736 RFA NO. 177 OF 2018 119 and that she had a close acquaintance with the Propounder earlier.
67. DW4 deposed that all the arrangements, including paper, pen and the documents required for preparing the Will, were made ready when they reached there. She deposed that after verifying the numbers from the documents, Gouri Ponnamma was telling it to DW5. DW4 deposed that the details regarding the conditions, amounts and properties, etc., were told to DW5 by Gouri Ponnamma and DW5 prepared the draft; that it was read out to Gouri Ponnamma; that Gouri Ponnamma instructed to write the original; that DW5 prepared the original and read it out to Gouri Ponnamma; that thereafter Gouri Ponnamma read and understood the same and signed it. It is difficult to believe that illiterate Gouri Ponnamma went through the documents and instructed the conditions to be incorporated in the Will and she 2025:KER:72736 RFA NO. 177 OF 2018 120 read and understood the recitals in the original Will prepared by DW5.
68. The other attesting Witness is the husband of DW4. The evidence of DW4 would indicate that he did not have any physical incapacity to give evidence. The evidence of DW4 and DW5 would show that the evidence of the husband of DW4 is more material to prove the execution of Exts.X1, X3 and X5, especially when he is the witness on Ext.X1 Cover also. The non-examination of the other attesting witness of Ext.X5 also creates suspicion.
69. Ext.X5 Will was executed on 30.10.1982 when Gouri Ponnamma was aged only 61 years and Gouri Ponnamma died on 01.11.1994. At the time of the execution of Ext.X5, Gouri Ponnamma was perfectly healthy and death was not in her contemplation. Ext.X5 includes all her assets. The conduct in 2025:KER:72736 RFA NO. 177 OF 2018 121 executing Ext.X5 seems abnormal when it is considered along with other suspicious circumstances.
70. The contention of the Propounder is that the reason for executing Ext.X5 Will by Gouri Ponnamma in favour of the Propounder was that he was not given assets equivalent to the assets given to the other children by the parents and that the only property given to the Propounder as per Ext.B20 is overburdened with liabilities. Father gave assets to all the children as per Ext.B20 Will scheduling as 'A' to 'F' therein. Thereafter, father executed Ext.B23 with respect to the 'F' Schedule in Ext.B20 in favour of the Propounder. It is true that while father and mother executed Exts.B25, B26, B28, B29 and B30 Settlement Deeds during the year 1975, no property was settled in favour of the Propounder. But the Propounder alone among the children was made a partner of the prestigious N.C. and Company along with the father, with effect from 02.03.1976, 2025:KER:72736 RFA NO. 177 OF 2018 122 as revealed from Ext.A24. As DW8, the Propounder admitted that there were plant and machinery worth lakhs of Rupees in the name of the father and the Propounder, and vehicles in the name of the Propounder; and that on the death of the father, all came into the control of the Propounder and mother. Even though it is contended that there were liabilities, he refused to produce any documents for the same. Though he deposed that he had produced documents, no documents are seen produced to prove any liability on the said property given to the Propounder. In Ext.B2 judgment in O.S.No.2/1978 and O.S.No.9/1977 in which the challenge against Ext.B19 Will was involved, it is seen that the Propounder, who was the Defendant No.6 in O.S.No.2/1978, supported the Defendant No.1 therein/mother who contended that Ext.B19 was executed with the intention to provide her whatever that is left after providing for the children sumptuously. In the Ext.B4 Appellate Court 2025:KER:72736 RFA NO. 177 OF 2018 123 judgment, it is found that all the children were given a sufficient number of properties and Ext.B19 takes only small items of property. In view of the contention of the Propounder in the aforesaid suits and the findings in Exts.B2 and B4 judgments, the Propounder could not contend that he was not given assets equivalent to the assets given to the other children by the parents. DW8 pleaded ignorance to the suggestion that, as per Ext.B20, property worth several manifolds when compared to those given to others, was given to him and deposed that he is not ready for an exchange as the mother was buried there. To the suggestion to DW8 that the mother will not give further assets to him since he received a larger part of the properties, he answered that the mother did not give any property. It is in evidence that the father did not give properties to all children and the mother did not give properties to all children and that they provided the properties standing in their name as per a 2025:KER:72736 RFA NO. 177 OF 2018 124 mutual decision to each to the children for equal distribution of assets. That apart, PW1 specifically deposed that the father had purchased quarry property of 2.06 acres in the name of the wife of the Defendant No.5 and the same was not disputed by the Defendant No.5. Even though the Propounder contended that the property given to him was overburdened with liabilities, he did not produce any evidence to support his contention. The Defendant No.5 in his Written Statement admitted that his father had received compensation from the Compensation Tribunal in O.S. No.1/1975. DW8 has stated in the Proof Affidavit that an amount Rs.75 lakhs was demanded by Income Tax Authorities after the death of the father for the amounts received by the father in Government contracts. DW8 pleaded ignorance to the suggestion that the financial problems of the father were over after the favourable decision of the Supreme Court in the Kuttiyadi case on 21.11.1974. DW8 admitted that the father had 2025:KER:72736 RFA NO. 177 OF 2018 125 settled the liabilities using the huge amounts received as per the Court Decree in 1974. Hence, there is no evidence before the Court to hold that as on the date of execution of Ext.X5, there was liability over the property given to the propounder having an extent of 49 cents at Shanghumugham and a palatial residential building having approximately 10000 Sq. Ft. therein. The decree amount in the Ext.B9 judgment in O.S.No.113/1979 filed by the Syndicate Bank was only Rs.3,48,415.92. Even assuming that there was a liability of Rs.3,48,415.92 at the time of execution of Ext.X5, the said amount is only negligible when compared to the value of Jagathy House or to the amounts receivable under the three suits filed by the father. The reasons for executing Ext.X5 by Gouri Ponnamma in favour of the Propounder contended by the Propounder are unbelievable.
71. Several reasons are stated in Ext.X5 for executing the same, namely - Only the Propounder supported and consoled Gouri 2025:KER:72736 RFA NO. 177 OF 2018 126 Ponnamma after death of her husband; Gouri Ponnamma has more faith and confidence over the Propounder; No asset as given by Gouri Ponnamma to the Propounder; The assets given by father is overburdened with huge liabilities; All children except the Propounder were given valuable properties which are sufficient for their well-being; and The Propounder has no income and he has heavy liabilities. Though the Propounder contended that other children were not on good terms with Gouri Ponnamma, there is no evidence for that. There is no evidence that the Propounder alone supported and consoled Gouri Ponnamma after the death of her husband. As DW8, he admitted that the marriage engagement of the daughter of the Defendant No.4 was conducted at Jagathy House and he pleaded ignorance that the daughter of the Defendant No.1 was 'Kalathilakam' and all the arrangements for dance were conducted at Jagathy House. Even though DW8 deposed that 2025:KER:72736 RFA NO. 177 OF 2018 127 Gouri Ponnamma had submitted a complaint to the Police for the harassment by the children, he could not give any of the details with respect to the same. Even though the Propounder contended that O.S. No.164/1976 was filed by the Plaintiff No.1 against the father claiming oral partnership of Kuttiyadi Project, he pleaded ignorance to the suggestion that it was filed after discussing with the father. It is true that no asset was given by Gouri Ponnamma to the Propounder. But the Wills and Settlement Deeds executed by the father and mother with respect to their respective properties in favour of each of the children would prove that the father and mother wanted equal distribution of their assets among the children. I have already found that there is no proof regarding the liability over the property given to the propounder at the time of execution of Ext.X5. Even though it is claimed that the Propounder has no income and that he has heavy liabilities, there is no evidence for 2025:KER:72736 RFA NO. 177 OF 2018 128 the same. He was the partner of N.C. and Company along with his mother. Even though the learned Senior Counsel for the Appellant contended that there is no evidence that Gouri Ponnamma had received any amount which were due to the father as per Court decrees in O.S.No.25/1974, O.P.(Arb) No.26/1971 and O.S. No.1/1975 filed by the father, I am of the view that the evidence probabilizes that Gouri Ponnamma had received huge amounts. Counsel on both sides admit that Rs.43,55,091/- received towards the award in O.P.(Arb) No.26/1971 is still under deposit. The receipt of Rs.33,45,486/- as per Ext.B18 as per the Decree in O.S. No.25/1974 is admitted. It is true that there is no evidence with respect to the balance decree debt in O.S. No.25/1974 and there is no evidence as to what happened to O.S.No.1/1975. But the Defendant No.5 had been residing with the mother. He must have knowledge about the balance decree debt in 2025:KER:72736 RFA NO. 177 OF 2018 129 O.S. No.25/1974 and the realisation of the decree debt in O.S. No.1/1975. He is not disclosing the status of those cases to the Court. Nobody will abandon the realisation of the huge amounts due under the decrees in those suits. The Defendant No.5 has no case that any other party to the suit has realised or received the said amount. In such a case, the only probability is that all the amounts covered by the said Decrees had been received by Gouri Ponnamma. This finding is supported by the evidence of DW5 and DW8. In cross-examination, DW8 admitted that the amount awarded in the Arbitration case was received by Gouri Ponnamma and the Propounder after the death of the father and the income tax was paid with respect to the same. PW1 deposed that on receipt of Income Tax Notice in the year 1995, it is understood that an amount of Rs.130 lakhs was withdrawn. This evidence is not cross-examined by the Propounder. The Propounder in his Written Statement admitted 2025:KER:72736 RFA NO. 177 OF 2018 130 that Gouri Ponnamma realised the entire amount due under the Decree in O.S. No.25/1974. DW5 did not specifically deny the question of whether the decree amount was more than Rs.77 Lakhs. DW5 admitted that he had entrusted the cheques received from the Court to Gouri Ponnamma. DW8 admitted that it is DW5 who received cheques from the Court in the case with KSEB. Though it is suggested to DW8 that DW5 received the cheque amounts and the wife of the Propounder gave Receipts for the mother, he pleaded ignorance. The evidence of PW1 that the father gave Rs.8 Lakhs to Gouri Ponnamma for her security is not disputed by the Propounder. What happened to those amounts is not disclosed by the Propounder. He, being the son who had been residing with Gouri Ponnamma, must have full knowledge of the amounts received in those Court Decrees and the utilisation of the same. The Propounder has no case that the mother gave huge amounts to any of the other 2025:KER:72736 RFA NO. 177 OF 2018 131 children or spent huge amounts for any other purpose. In such a case, I find considerable force in the contention of the Counsel for the respondents that the amounts received by the mother are misappropriated by the Propounder with the help of DW5, who appeared for Gouri Ponnamma in those cases. The respondents have a contention that the Propounder had been leading a lavish lifestyle. In effect, the reasons stated in Ext.X5 for persuading Gouri Ponnamma to execute it are not correct. If Ext.X5 was the true and genuine Will of the Testator, Gouri Ponnamma would not have included such incorrect statements in it.
72. The inclusion of 2.38 acres in Ext.X5, which was already bequeathed in favour of Defendant No.4 by the father as per Ext.B20, also makes it suspicious. DW8 deposed that the said property was excluded after receiving money from Gouri Ponnamma, but he pleaded ignorance about the documents 2025:KER:72736 RFA NO. 177 OF 2018 132 and claimed the said property is in his possession. 2.38 acres out of the property situated in Alamcode village, described in Ext.X5, belonged to the Defendant No.4 as per Ext.B20. If Gouri Ponnamma had executed Ext.X5, the said property would not have been included in Ext.X5. This also makes Ext.X5 shrouded with suspicion.
73. With respect to assignment of trusteeship in S.N. Trust to the Propounder as per Ext.X5, I find force in the contention of the learned Senior Counsel for the appellant that the Propounder has not become a hereditary trustee as per Ext.A34(a) Letter issued by mother as the request was only to permit the Defendant No.5 to represent Gouri Ponnamma who is the Trustee.
74. Admittedly, the Propounder and the family had been residing with Gouri Ponnamma in Jagathy House, where Ext.X5 Will and Ext.X1 Cover were alleged to have been prepared. Et.X5 is 2025:KER:72736 RFA NO. 177 OF 2018 133 dated 30.10.1982 and its deposit is dated 01.11.1982. The absence of DW8 in the residence during those days was not properly explained by DW8. He deposed that he does not remember whether his mother demanded that he not be present in the house on 30.10.1982 or on the next day. Where DW8 and his family were on 30.10.1982 and 01.11.1982 is not explained by DW8. If the mother wanted to execute the Will in the absence of the Propounder, she must have had prior knowledge about the absence of the Propounder and his family on those days. The Propounder has no case that he had intimated mother about his absence on those days. DW8 admitted that his mother told him that two advocates visited the house during his absence and discussed the Will in favour of him, and that his wife was present on that day. This would be contradictory to the evidence of DW8 that he came to know about Ext.X5 Will only after its execution from the mouth of Gouri Ponnamma.
2025:KER:72736 RFA NO. 177 OF 2018 134
75. Gouri Ponnamma did not have even a basic education. It is not proved as to how she got knowledge about the sealed cover procedure for the deposit of the Will is suspicious. DW8 stated that two months before the death of Venkitachalam Iyer on 03.10.1982, the mother visited him at the Medical College Hospital and had discussions about the execution of the Will. DW8 admitted that the Vekitachalam who died on 03.10.1982 is not the lawyer, but was a friend of the father. DW8 stated that the mother met Senior Advocate S. Narayanan Potti and DW5 with regard to the execution of the Will. Even though the Propounder claimed that he had produced documents to show that DW5 and Adv. Narayanan Potti appeared for Gouri Ponnamma, he could not point out any document. DW8 admitted that Adv. Narayanan Potti appeared for him in C.M.A arising from the present suit. The contention that the mother met Senior Advocate S. Narayanan Potti and DW5 with regard to the 2025:KER:72736 RFA NO. 177 OF 2018 135 execution of the Will was developed only in evidence. Such contention is very difficult to believe, especially since it is claimed that Senior Advocate Sri. S. Narayanan Potti, practising in the High Court, came to the residence of Gouri Ponnamma at Thiruvananthapuram to meet her.
76. DW8 stated in Proof Affidavit that after execution of Ext.X5 Will on 01.11.1982, Gouri Ponnamma informed him regarding the existence of the Will and that the same was a closed one deposited with the District Registrar; that Will had been executed in his favour and warned him against revealing this fact to anyone. DW8 further stated that Gouri Ponnamma handed over Ext.X2 Receipt a few months before her death in the year 1994 after returning from prolonged hospitalisation and further informed him to wait till her 16th day Ceremonies after death and then go alone and open the Will. In cross- examination, he stated that he came to know about the Will in 2025:KER:72736 RFA NO. 177 OF 2018 136 the year 1982; that he does not remember the date or month; that it is after one week from the date of the Will and then corrected that as within one week. Then DW8 stated that he came to know that Gouri Ponnamma is going to execute a Will in his favour while she was discussing with Venkitachalam. He does not state any specific reason for not stating these in the Written Statement, though he admitted that it is an important matter. DW8 further stated that only when he was given a copy of the Will, he came to know that the Will was prepared by his mother's advocate, DW5, and attested by her personal friend and her husband. This would reveal that DW8 does not have a consistent case with respect to his knowledge about the Will, which makes the execution of Ext.X5 Will suspicious.
77. The contention of the learned Senior Counsel for the Appellant is that Gouri Ponnamma wanted to keep the execution of the Will a secret, and hence, a sealed cover procedure was 2025:KER:72736 RFA NO. 177 OF 2018 137 adopted. DW4 deposed that Gouri Ponnamma said that the Will should be kept as top secret. It is in evidence that DW4 is known to Defendant No.5 much before the execution of Ext.X5. If Gouri Ponnamma wanted to keep the Will a secret, Gouri Ponnamma would not have availed the service of DW5 to prepare the Will. It is in evidence that DW5 is well known to the Defendant Nos.1 and 5. DW5 admitted that he appeared in 18 cases for Defendant No.1, in 17 cases for Gouri Ponnamma and in 10 cases for Defendant No.5. DW5 stated that he had given Vakalath for Gouri Ponnamma in only three cases before 1982. PW1 deposed that DW5 was his lawyer since the year 1978-79 and that though Gouri Ponnamma had given joint Vakalath to DW5 along with PW1, she had no occasion to meet DW5. DW7 deposed that DW7 and mother saw DW5 for the first time in the year 1984 at the Ambalapuzha temple. This would show that DW5 had much acquaintance with Defendant Nos.1 & 5. DW5 2025:KER:72736 RFA NO. 177 OF 2018 138 has not appeared only for Gouri Ponnamma in any case before 1982 and there is no evidence to prove that Gouri Ponnamma had any personal acquaintance with DW5 otherwise than through her children. The evidence shows that DW5 had a close association with DW8. DW8 admitted that DW5 was his lawyer and does not remember as to how many years he has known DW5 as a lawyer. DW8 admitted that he had acquaintance with DW5 since the year 1977. To the suggestion to DW8 that from 1982 to 1994, DW5 had filed several cases for him and that they travelled together to Ernakulam, he answered that it was for his mother's cases. DW8 admitted that he had stated in the Counter Affidavit dated 05.02.1999 that the mother had stated about the Will to all the children. DW5 deposed that the mother herself had told Defendant No.4 about the Will. These evidences are against the contention of Defendant No.5 that Gouri Ponnamma wanted to keep the execution of the Will a secret.
2025:KER:72736 RFA NO. 177 OF 2018 139
78. The conduct of Defendant No.5 in the suit proceedings itself creates suspicion. He wanted to defer his examination after completing the evidence of all witnesses. When he found it difficult, he submitted before the Hon'ble Supreme Court that he did not intend to examine himself. The Defendant No.5 examined DW5 only as Scribe. He could not be an attesting witness. But Defendant No.5 put forward all his defences through the mouth of DW5. Exts.B2 to B18, which should have been marked through Defendant No.5, were marked through DW5. The Defendant No.5 was compelled to give evidence on account of the Remand Order and the Order in O.P.(C) No.1853/2016 and O.P.(C) No.2005/2016. The reluctance of Defendant No.5 to enter into the Witness box creates a strong suspicion against the contentions raised by him, which include the execution of Ext.X5. The attempt of Defendant No.5 to prove his case through DW5, who is cited as Scribe of Ext.X5, makes 2025:KER:72736 RFA NO. 177 OF 2018 140 the suspicion more stronger. Overwhelming enthusiasm of DW5 to uphold Ext.X5 Will is obvious throughout his examination. The evidence of DW5 would probabilize the case of the respondents that he played a crucial role in the creation of the Will. DW5 even went to the extent of deposing that it is a misunderstanding that Gouri Ponnamma does not know English, when all the parties to the suit admit that Gouri Ponnamma was illiterate. The material averments with respect to the execution of Ext.X5 Will and the knowledge of the Defendant No.5 with respect to the same are not seen pleaded in his Written Statement. All the material contentions are seen advanced at the time of evidence without sufficient pleadings for the same. DW8 admitted in cross-examination that only after the Remand Order, for the first time, he is stating that material details with respect to Ext.X5 were within his knowledge. DW8 in cross-examination stated that there was a quarrel among the 2025:KER:72736 RFA NO. 177 OF 2018 141 children when it was told that the mother had executed Will, but no such contention was taken either in the Written Statement or in the Proof Affidavit.
79. When substantial suspicious circumstances are there to doubt the execution of Ext.X5, it makes other circumstances also suspicious, though they may not independently make out the execution of Will suspicious. The other circumstances are the absence of any special reason for Gouri Ponnamma to give all her properties to the Defendant No.5 alone to the exclusion of all other children. Gouri Ponnamma parted with a portion of the properties covered by the Will after its execution. The Defendant No.5 went only with his associates to open the closed Will, avoiding other legal heirs. The Defendant No.5 showed undue haste in registering Ext.X5 Will, in effecting mutation and in transferring the amounts standing in the bank accounts of Gouri Ponnamma.
2025:KER:72736 RFA NO. 177 OF 2018 142
80. In the Remand Order dated 05.03.2013 in R.F.A No.552/2004 and connected cases, this Court has entered a categorical finding that the evidence placed on record is insufficient to enter into a definite finding. The case was remitted back for fresh consideration after affording both sides the opportunity to adduce further evidence, if they choose. In the common judgment in O.P.(C) Nos.1853 & 2005 of 2016, it is specifically observed that the Defendant No.5 is permitted to examine himself so as to explain the circumstances sought to be explained by him in the Remand Order and he is not permitted to adduce any evidence regarding the execution of the Will while he is being in the box in order to fill up the lacunas in the evidence of the persons who have been examined on his side to prove the execution of the Will; that he may also be given an opportunity to examine other witnesses if any required by filing additional witness list without delay, if he wants to examine the 2025:KER:72736 RFA NO. 177 OF 2018 143 things sought to be explained by him by the Remand Order of this Court. Thereafter, Defendant No.5 examined himself as DW8. He tried to explain the six questions mentioned in the Remand Order. The evidence of DW8 could not be used to prove the execution of Ext.X5 Will and his evidence could not be used to fill up the lacunas in the evidence of DW4 attesting witness and DW5 Scribe. The Defendant No.5 further examined DW9, who is his co-brother and who was a witness in Ext.B18, and DW10, who prepared Ext.X10 Finger Print Report. The evidence of DW9 does not relate to the execution of Ext.X5. I have already discussed about Ext.X10 Fingerprint Report and found that it does not say that the fingerprints in Exts.X1, X3 and B18 belong to Gouri Ponnamma. Hence, the case of the Defendant No.5 with respect to the execution of Exts.X1, X2 and X5 is not improved after the Remand Order.
2025:KER:72736 RFA NO. 177 OF 2018 144
81. In view of the above discussion, I am of the view that the Trial Court correctly appreciated the evidence and the law on the point and held that Gouri Ponnamma died intestate and that the plaint schedule properties are liable to be partitioned, by rejecting Ext.X5 Will.
82. I take note of the contention of the Senior Counsel for the Additional Respondent No.9 and hold that if the Additional Respondent No.9 has obtained any right in the plaint schedule properties from the Defendant No.5, it can claim such right derived from the Defendant No.5 up to the extent of the undivided share of the Defendant No.5 in the Plaint schedule properties; that any other arrangement between the Defendant No.5 and the Additional Respondent No.9 is not binding on other sharers of the property; and that the Additional Respondent No.9 has no right to claim any equity as it is a pendente lite purchaser.
83. Accordingly, the Appeal is dismissed with costs.
Sd/-
M.A.ABDUL HAKHIM JUDGE Shg/