Research › Search › Judgment

Kerala High Court · body

2004 DIGILAW 94 (KER)

K. L. Laxmikantha v. K. L. Vijayalaxmi

2004-03-05

A.LEKSHMIKUTTY

body2004
Judgment :- Aggrieved by the judgment and decree in O.S.No. 92/1992 on the file of the Sub Court, Kasaragod, this appeal is filed by the defendant. The respondent as plaintiff filed the suit for partition and separate possession over the plaint schedule property. Plaint A schedule property originally belonged to late Sugandha, mother of plaintiff and defendant who passed away in March 1992. On her death, A schedule property devolved on the defendant and plaintiff and both of them are entitled to ½ right over the property. A schedule consists of the residential building in the occupation of the defendant and 4 other shop rooms in the possession of monthly tenants. The annual income of the property would fetch Rs.14,200/-. Defendant is collecting the entire income and appropriation the same without paying anything to the plaintiff. Notice was issued on 28-5-1992 and again on 30.5.1992. The second notice sent was received by the defendant to which she sent false reply. Even after acceptance of notice, the defendant was not amenable for partition and hence the suit. 2. The defendant filed written statement contending that late Suganda bequeathed A schedule property to her as per registered will dated 9-1-1985. On the death of Suganda, the will has come into effect and now A schedule property exclusively belongs to the defendant. The plaintiff has no manner of right and she is not entitled to any partition and separate possession. The defendant has obtained purchase certificate from the Land Tribunal with respect to A schedule property. He received only one notice to which he sent a reply. He has effected valuable improvements in the suit properties. She has electrified the house and did plastering work, constructed iron gate to the compound and effected other improvements spending about Rs.35,000/-. In equity, the defendant is entitled to value of improvements and allotment of the residential house in case of partition. 3. On the basis of the pleadings, the trial court framed six issues. No oral evidence was adduced by the plaintiff. Ex.A1 to A4 were marked on her side. The defendant was examined as DWs.1 and 2 and independent witnesses were examined as DWs. 2 and 3. Exts.B1 to B8 were marked. The court below after appreciation of the evidence passed a decree for partition. Against the said judgment and decree, this appeal is filed by the defendant. 4. Ex.A1 to A4 were marked on her side. The defendant was examined as DWs.1 and 2 and independent witnesses were examined as DWs. 2 and 3. Exts.B1 to B8 were marked. The court below after appreciation of the evidence passed a decree for partition. Against the said judgment and decree, this appeal is filed by the defendant. 4. The question to be considered is whether the decree and judgment passed by the court below are liable to be set aside. Admittedly the property originally belonged to Suganda. She died in March 1992. The case of the respondent is that after the death of the mother, she is entitled to one half share over the plaint schedule properties. There are buildings in the plaint schedule properties and the plaintiff is residing were rented out to the tenants. The appellate is collecting the entire income and appropriating the same without paying her due share. So the suit is filed for partition and separate possession. 5. The contention of the appellant is that during the lifetime of the mother, she has registered Ext.B1 will dated 9-1-1985 bequeathing the entire plaint schedule property to him. Ext.B3 is the certificate of death of Suganda. As per the appellant, on the death of Suganda, he became the sole legatee under the will and accordingly he is in absolute possession and enjoyment of the same. Ext.B2 is the tax receipt. The execution of will is denied by the respondent. In order to prove the execution and attestation of the will, the defendant has cited and examined DWs. 2 and 3. DW2 is the second attestor to Ext.B1 and DW3 is the scribe. The first attestor of the Will according to the appellant, is not in a disposing state of mind evidenced by ExtB4 certificate. So the entire question rests with the genuineness of the will. DW1 gave evidence that Ext. B1 Will is executed by his mother bequeathing her property to him. It is her free will and testament. The attesting witness deposed before court that the testator put her signature in the will in the presence of himself and the other attesting witness put the signatures in the presence and sight of the testator and the scribe. At the time of execution of the will, the testator was having full disposing state of mind and it was her free will and testament. At the time of execution of the will, the testator was having full disposing state of mind and it was her free will and testament. DW3, the scribe also gave evidence that it was prepared at the instance of the testator. At the time of execution of the Will, she was having full disposing state of mind and it was voluntarily executed. So according to the appellant, the genuineness of the will is proved through the evidence of DWs. 2 and 3. The lower court also found that except certain minor discrepancies, the witnesses have proved the execution of the will. As per the lower court, there is no apparent discrepancies in the evidence of DWs. 2 and 3 regarding the execution and attestation of the Will. The Will was alleged to be executed on 9-1-1985 and the witnesses were examined in 1995. So even if there is minor discrepancies, it is of no consequence. It is submitted by learned counsel for the respondent that DWs.2 and 3 deposed before court that the will has been registered on the date of the alleged execution of the will. But Ext.B1 shows that it was registered only on 14-1-1985. This submission of the learned counsel cannot be accepted. The document is written in Kannada. The writing on the back side of Ext.B1 was translated by Dinesha. K., Kannada Translator of this Court. It would show that the document was presented for registration on 9-1-1985 itself. But it was entered in the book kept for the said purpose only on 14-1-1985. DW3 has explained the circumstances under which the mother executed Ext.B1. Ext. B2 is the English translation of Ext.B1. Since the genuineness of the Will is disputed by the respondent, the burden is on the appellant to prove the same. The evidence of DWs.2 and 3 would clearly show that the testator was having full testamentary capacity and she has put her signature in their presence and the attestors put their signature in her presence and sight. So the execution of the will is properly proved by the appellant. Ext. B8 is a letter alleged to be sent by the plaintiff to her mother Suganda on 27-12-1984. The said letter is proved through DW1. It would clearly show that the plaintiff eloped with her lover against the wishes of her mother. So the execution of the will is properly proved by the appellant. Ext. B8 is a letter alleged to be sent by the plaintiff to her mother Suganda on 27-12-1984. The said letter is proved through DW1. It would clearly show that the plaintiff eloped with her lover against the wishes of her mother. Ext.B1 is seen executed a few days after the receipt of the letter. It is only possible that since the plaintiff has acted against the wishes of the mother, she happened to execute the will. In such case there is no suspicious circumstances in respect of the execution of the will. Ext.B6 is the purchase certificate obtained in the name of the appellant. It is true that even if one of the co-owner has obtained the certificate in his name, it enures to the benefit of the other co-owners. As per the court below, the purchase certificate was obtained by the appellant on receipt of notice of partition sent of behalf of the plaintiff. It is pertinent to note that even though the appellant has examined one of the attestors in the document and the scribe besides producing the documents, the plaintiffs has not entered the box to give any contra evidence. The court below has carried away by the version of DW2 that at the time of execution of Ext.B1 the plaintiff was residing with her mother. According to the lower court, if that be so, there is no possibility of excluding the plaintiff from inheriting the property of her mother. In my view that itself will not be a ground to disbelieve the version of DWs. 2 and 3, if it is otherwise acceptable. DW2 is not a member of the family of the plaintiff and defendant. As far as the execution of the will is concerned, the crucial question is whether the testator was having disposing state of mind at the time of execution of the will and whether it is the free will and whether the testator voluntarily executed the document. These facts were proved by the evidence of DWs. 2 and 3. 6. In such circumstances it is to be found that Ext.B1 is a genuine document and if it be so the appellant is the sole legatee under the will entitled to the property and the respondent is not entitled to get one half share over the property. These facts were proved by the evidence of DWs. 2 and 3. 6. In such circumstances it is to be found that Ext.B1 is a genuine document and if it be so the appellant is the sole legatee under the will entitled to the property and the respondent is not entitled to get one half share over the property. Hence the decree and judgment of the court below are set aside and the appeal is allowed and the suit is dismissed.