Kerala High Court
Satheesan. T vs Pothuvarath Vijayan on 19 July, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
FRIDAY, THE 19TH DAY OF JULY 2024 / 28TH ASHADHA, 1946
RSA NO. 372 OF 2024
AGAINST THE ORDER/JUDGMENT DATED 31.01.2024 IN AS NO.31 OF 2021 OF
ASSISTANT SESSIONS COURT/ADDITIONAL SUB COURT, THALASSERY ARISING
OUT OF THE ORDER/JUDGMENT DATED 12.01.2021 IN OS NO.259 OF 2013 OF
PRINCIPAL MUNSIFF COURT, KANNUR
APPELLANT/S:
1 SATHEESAN. T,
AGED 62 YEARS
S/O LATE YESHODA, VISMAYAM, CHEMBILODE P.O. MOWECHERY,
KANNUR (LEGAL HEIR OF DECEASED YESHODA. T. D1/R1 IN
AS), PIN - 670613
2 VASANTHA.T,
AGED 68 YEARS
D/O LATE YESHODA ARADHANA, NARIKKODE PANAYATAM
PARAMBA.P.O , KANNUR (LEGAL HEIR OF DECEASED YESHODA.
T. D1/R1 IN AS), PIN - 670611
3 RAMANI. P.V,
AGED 65 YEARS
D/O LATE YESHODA MURALI KRIPA KIZHUTHALLI, NEAR POLICE
QUARTERS P.O. CHOVVA, KANNUR (LEGAL HEIR OF DECEASED
YESHODA. T. D1/R1 IN AS),
PIN - 670611
4 JYOTHI DASAN. T
AGED 49 YEARS
D/O LATE YESHODA, JYOTHI NIVAS, KANAYANORE P.O.
MOWANCHERY, KANNUR (LEGAL HEIR OF DECEASED YESHODA. T.
D1/R1 IN AS), PIN - 670613
5 THANDARATH NALINI
AGED 82 YEARS
D/O.DEVAKI, RESIDING AT THANDARATH HOUSE, CHEMBILODE
AMSOM, MOWANCHERI DESOM, P.O.MOWANCHERI, KANNUR,
PIN - 670613
6 THANDARATH LAKSHMANAN
AGED 72 YEARS
S/O.DEVAKI, RESIDING AT PATTAYACHALIL HOUSE, CHEMBILODE
AMSOM, MOWANCHERI DESOM P.O.MOWANCHERI, KANNUR,
PIN - 670613
7 THANDARATH REMESAN
AGED 60 YEARS
S/O.DEVAKI, RESIDING AT PATTAYACHALIL HOUSE, CHEMBILODE
AMSOM, MOWANCHERI DESOM, P.O.MOWANCHERI, KANNUR,
PIN - 670613
R.S.A No.372 of 2024
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8 C.SANTHA
AGED 74 YEARS
W/O.SREEDHARAN, RESIDING AT PATTAYACHALIL HOUSE,
MUNDERI AMSOM, EACHUR DESOM, P.O. EACHUR, KANNUR,
PIN - 670591
9 REENA C,
AGED 49 YEARS
D/O.SREEDHARAN, RESIDING AT PATTAYACHALIL HOUSE,
MUNDERI AMSOM, EACHUR DESOM, P.O. EACHUR, KANNUR,
PIN - 670591
10 C.RIJESH
AGED 47 YEARS
S/O.SREEDHARAN, RESIDING AT PATTAYACHALIL HOUSE,
MUNDERI AMSOM, EACHUR DESOM, P.O. EACHUR, KANNUR,
PIN - 670591
11 C.REJULA
AGED 45 YEARS
D/O.SREEDHARAN, RESIDING AT PATTAYACHALIL HOUSE,
MUNDERI AMSOM, EACHUR DESOM, P.O. EACHUR, KANNUR,
PIN - 670591
12 THEKKEYIL SUJITHA
AGED 62 YEARS
W/O.GANGADHARAN RESIDING AT THAKKEYIL HOUSE, ELAYAVOOR
AMSOM, KEEZHUTHALLI DESOM, THAZHE CHOVVA, KANNUR
DISTRICT, PIN - 670018
13 BALAKANDI SUMA
AGED 52 YEARS
W/O.VIJAYAN, RESIDING AT BALAKANDI HOUSE, CHEMBILODE
AMSOM, PANAYATHAMPARAMBA DESOM P.O.PANAYATHAMPARAMBA,
KANNUR DISTRICT, PIN - 670595
14 BALAKANDI SAYOOJ,
AGED 29 YEARS
S/O.VIJAYAN, RESIDING AT BALAKANDI HOUSE, CHEMBILODE
AMSOM, PANAYATHAMPARAMBA DESOM P.O.PANAYATHAMPARAMBA,
KANNUR DISTRICT, PIN - 670595
15 BALAKANDI SNEHA
AGED 28 YEARS
D/O.VIJAYAN, RESIDING AT BALAKANDI HOUSE,CHEMBILODE
AMSOM, PANAYATHAMPARAMBA DESOM P.O.PANAYATHAMPARAMBA,
KANNUR DISTRICT, PIN - 670595
16 MAHIJA E,
AGED 61 YEARS
RESIDING AT THEJUS, KOTTANCHICHERI, P.O. KANHIORDE
KUDIKKIMOTTA, KANNUR, PIN - 670592
R.S.A No.372 of 2024
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17 BHAVIA E,
AGED 33 YEARS
D/O.BHARATHAN, RESIDING THEJUS, KOTTANCHICHERI, P.O.
KANHIORDE KUDIKKIMOTTA, KANNUR, PIN - 670592
18 KAVIA E,
AGED 29 YEARS
D/O.BHARATHAN, RESIDING THEJUS, KOTTANCHICHERI, P.O.
KANHIORDE KUDIKKIMOTTA, KANNUR, PIN - 670592
BY ADVS.
ABDUL RAOOF PALLIPATH
E.MOHAMMED SHAFI
KRISHNAPRIYA R.
SITHARA RAHEEM V.K.
RESPONDENT/S:
1 POTHUVARATH VIJAYAN
AGED 66 YEARS
S/O. JANAKI, RESIDING AT POTHUVARATH HOUSE, MUNDERI
AMSOM, EACHUR DESOM, P.O. EACHUR KANNUR DISTRICT,
PIN - 670591
2 POTHUVARATH RADHA
AGED 75 YEARS
D/O. JANAKI, RESIDING AT POTHUVARATH HOUSE, MUNDERI
AMSOM, PURAVOOR, P.O. KANHIRODE KANNUR DISTRICT,
PIN - 670591
3 POTHUVARATH SASIDHARAN
AGED 69 YEARS
S/O. JANAKI, RESIDING AT POTHUVARATH HOUSE, MUNDERI
AMSOM, EACHUR DESOM, P.O. EACHUR KANNUR DISTRICT,
PIN - 670591
4 POTHUVARATH BALAN @ BABU
AGED 58 YEARS
S/O. JANAKI, RESIDING AT POTHUVARATH HOUSE, MUNDERI
AMSOM, EACHUR DESOM, P.O. EACHUR KANNUR DISTRICT,,
PIN - 670591
5 POTHUVARATH VASUMATHI
AGED 71 YEARS
D/O. NARAYANAN, RESIDING AT GOKULAM, MUZHAPILANGAD
AMSOM, DESOM, P.O. MUZHAPILANGAD, KANNUR DISTRICT,
PIN - 670662
6 POTHUVARATH REMA,
AGED 68 YEARS
D/O. NARAYANAN, RESIDING AT SWAPNA NIVAS, MUZHAPILANGAD
AMSOM, DESOM, P.O. MUZHAPILANGAD, KANNUR DISTRICT,
PIN - 670662
7 MITHUN GANGADHARAN
R.S.A No.372 of 2024
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AGED 33 YEARS
S/O. GANGADHARAN, RESIDING AT THEKEYIL HOUSE ELAYAVOOR
AMSOM, KIZHUTHALLI DESOM, P.O. THAZHE CHOVVA KANNUR
DISTRICT, PIN - 670018
8 JITHIN GANGADHARAN
AGED 29 YEARS
S/O. GANGADHARAN, RESIDING AT THEKEYIL HOUSE ELAYAVOOR
AMSOM, KIZHUTHALLI DESOM, P.O. THAZHE CHOVVA KANNUR
DISTRICT, PIN - 670018
9 SEETHA. C,
W/O LATE P. RAJAN PODUVARATH HOUSE, KOTTANICHERI NEAR
KOTTANICHERI ANGAN VADI P.O.EACHUR- KANNUR,
PIN - 670591
10 SHAMNA. P
D/O LATE P. RAJAN PODUVARATH HOUSE, KOTTANICHERI NEAR
KOTTANICHERI ANGAN VADI P.O.EACHUR- KANNUR,
PIN - 670591
11 SHAJU. P,
S/O LATE P.RAJAN PODUVARATH HOUSE, KOTTANICHERI NEAR
KOTTANICHERI ANGAN VADI P.O.EACHUR- KANNUR, PIN -
670591
12 SHERIL CHAKKARAYAN,
S/O LATE P.RAJAN PODUVARATH HOUSE, KOTTANICHERI NEAR
KOTTANICHERI ANGAN VADI P.O.EACHUR- KANNUR,
PIN - 670591
THIS REGULAR SECOND APPEAL HAVING COME UP FOR
ADMISSION ON 19.07.2024, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
R.S.A No.372 of 2024
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J U D G M E N T
The Defendants 1 to 3, 5 to 10, 13, 14, 15 and the legal heirs of the deceased 4th defendant are the appellants in this Regular Second Appeal. The parties are referred according to their status before the Trial Court.
2. The plaintiffs are the children of one Janaki, who was the daughter of one Pothuvarathu Kalyani who was the 3rd wife of one Punnakkal Kunhappa. The plaintiffs preferred the suit for declaration of title, recovery of possession and for a perpetual injunction with respect to the Plaint Schedule Property of 23 cents of land, on the averments that the Punnakkal Kunhappa executed Ext.A1 Will dated 01.09.1950 bequeathing item No.1 to 8 properties therein to his children in the 1st wife by them, item No. 9 to 10 properties therein to the children to the second wife Povanath Kalyani and Item No.21 was bequeathed with 3rd wife Pothuvarath Kalyani and item No.22 was bequeathed to his grand daughter; that after R.S.A No.372 of 2024
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the death of Kunhappa, the Ext.A1 Will came into force and the respective plots were devolved upon the respective bequeathed that Pothuvarath Kalyani, who derived Item No.21 property transferred 68 cents of land to one Puthalath Raman, the husband of Pothuvarth Devaki in the year 1956 as per Ext.A3 document and the remaining extent of 23 cents of land was in the possession of Pothuvarath Kalyani that on the death of Kalyani, the said 23 cents which is included in the Plaint Schedule was devolved upon her children Janaki and Narayanan; that after the death of Janaki, plaintiffs 1 to 5 derived right over the property and after the death of Naraynan, plaintiffs 6 and 7 derived right over the plaint schedule property; that the defendants are the children and legal heirs of deceased children of Pothuvarth Devaki, daughter of Kunhappa in his 1st wife who died in the year 2009; that the plaintiffs are residing far away from the plaint schedule property; that the defendants got property adjacent to the plaint schedule property; that when the plaintiffs went to the Village office to remit basic tax for the plaint schedule property during April 2010, the village officer refused to R.S.A No.372 of 2024
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receive basic tax stating that the defendants have been paying basic tax for the plaint schedule property; that ultimately the matter was considered by the Sub Collector, Thalassery and he passed order dated 26.03.2012 directing the 1st plaintiff to approach the Civil Court and accordingly, the present suit is filed.
3. The defendants 1 to 10 and 13 to 15 filed Written Statement denying the plaint averments that Pothuvarath Kalyani was the 3rd wife of Punnakkal Kunjappa; and that Pothuvarath Kalyani sold 68 cents of land after the property devolved upon her as per Will executed by Kunhappa in favour of Puthalath Raman and admitting execution and registration of Ext.A1 Will by Kunhappa with respect to the said properties. The said defendants further contended that even though item No.21 was set apart to Pothuvarath Kalyani as per Ext.A1 Will, the executor of the Will transferred this property during the lifetime itself to Puthalath Raman, the predecessor of defendants, and hence the said property was not available when the Will came into force. They raised an alternate contention that R.S.A No.372 of 2024
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the right of the plaintiffs over the plaint schedule property had lost by the adverse possession and limitation.
4. The Trial Court dismissed the suit initially as per judgment dated 25.02.2021, finding that the plaintiff failed to prove execution of Ext.A1 Will (which is the certified copy of the Will) by producing the original of the Will before the Court and examining the attesting witness. The Trial Court found that the defendants failed to prove that the right of plaintiff over the plaint schedule property was lost by adverse possession and limitation. The plaintiffs filed A.S.No. 36/2015 before the First Appellate Court and the First Appellate Court by judgment dated 20.05.2019 confirmed the finding of the Trial Court on issue No.2 with regard to adverse possession and limitation and remanded the matter back to the Trial Court to give reasonable opportunity to the plaintiff to produce the original of Ext.A1 Will or to take steps to establish the ground necessary to adduce the secondary evidence of the Will and to prove the same, holding that, if the plaintiffs succeed to prove the R.S.A No.372 of 2024
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circumstance to enable them to adduce secondary evidence to mark Ext.A1 evidence, the Trial Court can presume due execution of the original of Ext.A1 Will under Sec.90 of the Indian Evidence Act.
5. Thereafter, the plaintiff amended the plaint, incorporating Paragraph No.16(a) that the plaintiffs are not in possession of original Will which is marked as Ext.A1; that to their knowledge, the original of Ext.A1 Will has gone into the hands of the children of Devaki who are the defendants 1 to 5. Thereafter, PW1 was further examined in support of the plaint allegation.
6. By the impugned judgment passed by the Trial Court, the Trial Court found available materials are sufficient to draw a presumption that the original of Ext.A1 Will is duly executed by Punnakkal Kunhappa and duly attested by the attesting witnesses and it came into force after the death of Kunhappa that the plaintiffs got title over the plaint schedule property as the remaining portion of the plot after transfer of 68 cents of land as per Ext.A3 in favour of Raman, the predecessor of the defendants. Accordingly allowed the R.S.A No.372 of 2024
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suit granting declaration of title, recovery of possession from the defendants and consequential prohibitory injunction as sought for by the plaintiffs. The Defendants 1 to 3, 5 to 10, 13, 14, 15 and the legal heirs of the deceased 4 th defendant filed A.S.No. 31/2021 and the same was dismissed by the First Appellate Court by judgment dated 31.01.2024, confirming the judgment and the decree passed by the Trial Court.
7. Heard the counsel for the appellant Sri Abdul Raoof Pallipath.
8. The Counsel for the appellant submitted that the execution of Will is not properly proved after remand of the matter by the First Appellate Court when a specific direction was made for the same. According to him, Sec.90 of the Indian Evidence Act is not available to prove a Will. He cited in a decision of Hon'ble Supreme Court dated 14/03/2023 in Civil Appeal No. 7775/2021 in which it is held that Wills cannot be proved only on the basis of their age - presumption under Sec.90 as to the regularity of documents more than 30 years of age is inapplicable when it comes to R.S.A No.372 of 2024
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proof of wills, which have to be proved in terms of Sec.63(c) with of the Succession Act 1925 and Sec.68 of the Evidence Act 1972. He also cited Division Bench decision of this Court in Sarada V. Radhamani in [2017(2) KLT 372] and contended that even if the execution of Will is not specifically denied or expressly admitted, the Propounder has to discharge his burden with respect to execution of Will by calling at least one of the attesting witnesses.
9. I find from the impugned judgments that the contesting defendants did not dispute execution of Ext.A1 Will, which is of the year 1950. The plaintiff has produced certified copy of the said will as Ext.A1. With respect to the contents of Will also, the contesting defendants cannot have any objection. They also claim 68 cents of property, which is the part of the property derived by Pothuvarath Kalyani, through their predecessor Puthalath Raman who got the property from Pothuvarath Kalyani. Since defendants also derived property on the basis of Ext.A1 Will, through the predecessor the plaintiff, the defendants could not make any challenge against Ext.A1 Will. The R.S.A No.372 of 2024
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contention of the contesting defendants was that the testator had transferred by the property covered under Item 21 bequeathed to Pothuvarath Kalyani even before his death and as on the date when the will came into force, Item No.21 property was not available. Here also, Puthalath Raman, the predecessor of defendants obtained 68 cents of land from the very same Item No.21 from Pothuvarth Kalyani as per Ext.A3. That apart, the defendants did not produce any document to prove that the testator parted with the said property before his death.
10. In the first round of litigation, the Appellate Court remanded the matter to prove the execution of Ext.A1 will, taking note of Sec.90 of the Indian Evidence Act. The defendants did not challenge the said remand order. I am of the view that said exercise was not necessary since execution of Will is admitted by defendants and they also obtained the property on the strength of the said Will.
11. In the decision in Sharada's case (supra) this Court found that propounder has to discharge his burden when the Will is not specifically denied or R.S.A No.372 of 2024
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expressly admitted. The said decision is not applicable in the case on hand as the defendants had specifically admitted the execution of Ext.A1 Will.
Under the circumstances, I do not find any illegality in the impugned judgments. None of the questions of law framed in the Memorandum of Appeal arise in the matter and accordingly the Regular Second Appeal is dismissed.
Sd/-
M.A.ABDUL HAKHIM JUDGE SM