Kerala High Court
A.K.Udayabhanu vs Dr.K.P.Ramakrishnan on 24 September, 2020
Author: T.V.Anilkumar
Bench: T.V.Anilkumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR
THURSDAY, THE 24TH DAY OF SEPTEMBER 2020 / 2ND ASWINA, 1942
RFA.No.427 OF 2011
AGAINST THE JUDGMENT & DECREE IN OS 32/2007 DATED 08-11-2010 OF
SUBORDINATE JUDGE'S COURT,THALASSERY
APPELLANTS/DEFENDANTS:
1 A.K.UDAYABHANU, S/O.LATE SAVITHRI,
ADVOCATE, UDAUAPURAM, NEAR OLD OVER BRIDGE,
THALASSERY.
2 A.K.CHANDRABHANUSO.LATE SAVITHRI
-DO-.
3 A.K.CHANDRAMATHI DO.LATE SAVITHRI
-DO-.
4 A.K.BHANUMATHI DO.LATE SAVITHRI.
-DO-.
BY ADVS.
SRI.K.V.SOHAN
SRI.N.N.ARUN BECHU
SRI.K.DILIP
SRI.GEORGE JOSEPH PULIMOOTTIL
SRI.ROVIN RODRIGUES
SMT.SREEJA SOHAN K.
RESPONDENTS/PLAINTIFFS:
1 DR.K.P.RAMAKRISHNAN, S/O.LATE LEKSHMI,
CHAITHANYA, SAIDAPPALLI ROAD,, P.O.TEMPLE GATE,
THALASSERY, KANNUR DISTRICT., PIN-670 102.
2 K.P.SIVADASAN, S/O.LATE LASKHMI (LEGAL HEIR)
CHAMBAKKARAN HOUSE, KAIVATTAM,, THALASSERY, KANNUR
DISTRICT., PIN-670 102. (DIED & LRs IMPLEADED)
ADDL.R3 MALLIKA.P.K,
AGED 62 YEARS,
W/O SIVADASAN (LATE), NO OCCUPATION CHOMBAKAREN
HOUSE, KAIVETTAM P.O.,TEMPLE GATE ,THALASSERY -2
RFA.No.427 OF 2011 2
ADDL.R4 PRVEENDAS. K.P.
S/O SIVADASAN(LATE),AGED 38 YEARS,CHOMBAKAREN
HOUSE,BUSSINESS,KAIVETTAM P.O.,TEMPLE
GATE,THALASSERY-2
ADDL.R5 NAVEENDAS .K.P.
S/O,SIVADASAN(LATE),AGED 38 YEARS,NO
OCCUPATION,WORKING TATA CONSULTANCY
SERVICE,CHOMBAKAREN HOUSE,KAIVETTAM P.O.,TEMPLE
GATE,THALASSERY-2
LEGAL HEIRS OF DECEASED R2 ARE IMPLEADED AS ADDL.R3
TO R5 AS PER ORDER DATED 27/5/2014 IN
IA 1042/2014
R1 BY ADV. SRI.K.C.ANTONY MATHEW
R1 BY ADV. SRI.JAYANANDAN MADAYI PUTHIYAVEETTIL
R1 BY ADV. SRI.K.V.PAVITHRAN
R1 BY ADV. SRI.P.SAJU
R1 BY ADV. SRI.E.M.UNNIKRISHNAN MANJERI
R2.1, R2.2, R2.3 BY ADV.
K.V.PAVITHRAN,M.P,JAYANANDAN, SAJU .P.
THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON
24.09.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
RFA.No.427 OF 2011 3
JUDGMENT
The defendants in O.S.No.32 of 2007 are the appellants. The plaintiffs in the suit obtained a decree for partition of 2/6 shares in the plaint schedule property. The legality of the decree is challenged by the appellants contending that their plea questioning the partibility of the property was not properly considered by the court below.
2. The plaint schedule property originally belonged to one Chathu and after his death it devolved on his wife, Kunchira and daughter, Lakshmi. Kunchira executed Ext.A1 Will dated 30.5.1967 in favour of Savithri, the mother of the defendants. The execution of the Will is not a disputed fact. Plaintiffs also conceded that the undivided half share which was acquired by Savithri under Ext.A1 Will after the death of the testator devolved after the death of Savithri on the RFA.No.427 OF 2011 4 defendants.
3. According to the plaintiffs, the remaining undivided half share which Lakshmi held, devolved on them after she died intestate. But according to the contention raised by the appellants, the death of Lakshmi was not intestate and on the other hand, she had already executed an unregistered Will on 16.3.1973 in favour of the appellants. The partibility of the plaint property was opposed by the defendants claiming interests on the strength of the unregistered Will.
4. The plaintiff after amending the plaint contended that it is a fabricated Will obtained by fraud.
5. No oral evidence was tendered by parties before the court below. Exts.A1 to A3 were tendered in evidence on behalf of the respondents herein.
6. After hearing the parties and considering the evidence on record, the court below held that RFA.No.427 OF 2011 5 the unregistered Will relied on by the defendants was not proved. The unregistered Will is intended to have been attested by the second plaintiff as well as another witness. None of these attesting witnesses was summoned and examined to prove execution of the unregistered Will. It is seen that the defendants filed I.A.No.904 of 2013 for sending the signature of the second plaintiff which he disputed, for expert opinion. There are other two I.As,3384 of 2010 and 3385 of 2010 by which the defendants sought the second plaintiff to furnish his signature before the court. The court below dismissed all these applications.
7. I heard the learned counsel for the appellants and the respondents.
8. The contention raised by the learned counsel for the appellants is that the court below erred in dismissing the I.A filed seeking expert opinion on the disputed signature of the second RFA.No.427 OF 2011 6 plaintiff and denying fair opportunity to prove the unregistered Will relied on by the appellants. In my view, even though second plaintiff had taken up a contention in the pleadings denying the signature in the Will, nothing precluded the appellants from summoning and examining him as witness to discharge their burden of proof of execution of the alleged Will. No explanation is made as to why such an opportunity was not availed notwithstanding that he is an opposite party in the suit. So also there is no explanation as to why the second attesting witness was not examined in support of proof of alleged Will. Even assuming that an expert report is called for also, that by itself is not sufficient to prove execution of Will since expert opinion can only corroborate the substantive evidence of execution. Now it is reported that the first attestor (second respondent herein) is also dead. In short, an opportunity which was otherwise RFA.No.427 OF 2011 7 available is lost once and for all. In the circumstances, I do not find it to be legitimate to accept the plea of the appellants for remand of the case. Any remand if made will only contribute to delaying disposal of the matter. No legal and valid reason has been made out for interfering with the impugned judgment and decree.
In the result, appeal fails and it is dismissed.
Sd/-
T.V.ANILKUMAR, JUDGE pm