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2017 DIGILAW 511 (KER)

APPUKUTTAN S/O BALAN v. M. B. DEVAKI W/O KUTTAN

2017-03-13

B.KEMAL PASHA

body2017
JUDGMENT : B. KEMAL PASHA, J. 1. Challenging the concurrent findings entered by the Munsiff's Court, Palakkad in O.S. No. 22 of 1998, followed by those of the I Additional District Court, Palakkad in A.S. No. 141 of 2002, the defendant in the suit has come up with this second appeal. 2. The suit is one for partition and separate possession of the ½ share of the plaintiff over the plaint schedule property. According to the plaintiff, the plaint schedule property is devolved on her father Balan through Exhibit-A1 Kanam sale deed. The plaintiff is the daughter of Balan in his first marriage with one Vellachi. Thereafter, Balan divorced Vellachi and married a woman named Ammalu, in whom the defendant was born. After the death of Ammalu, Balan married another woman named Vellachi. Balan died intestate in the year 1979. Subsequently, his third wife died in the year 1997. There is no child born in the wedlock of Balan and his third wife Vellachi. Therefore, the plaintiff and the defendant are the only legal heirs of Balan. 3. The defendant initially filed a written statement propounding Exhibit-B5 Will allegedly executed by Balan on 09.03.1978. According to the defendant, through Exhibit-B5, Balan bequeathed the plaint schedule property to the defendant by reserving the life interest of his third wife over the property. Alternatively, it was contended that even otherwise the defendant has been in exclusive possession and engagement of the property openly and continuously to the total exclusion of the plaintiff from 1979 onwards and therefore, he has prescribed title over the property through adverse possession and limitation. 4. The plaintiff filed a replication challenging Exhibit-B5. Thereafter, defendant has again filed an another written statement claiming independent right over the property as a cultivating tenant since the property originally belonged to one Azhvanchery Mana. 5. On the side of the plaintiff, PW1 was examined and Exhibit-A1 to Exhibit-A4 were marked. On the side of the defendant, DW1 to DW3 were examined and Exhibit-B1 to Exhibit-B7 were marked. The trial court disbelieved Exhibit-B5 Will and also the other independent claims forwarded by the defendant over the property and consequently decreed the suit in terms of the plaint. Challenging the said judgment and decree, the defendant filed A.S. No. 141 of 2002 before the District Court, Palakkad. The trial court disbelieved Exhibit-B5 Will and also the other independent claims forwarded by the defendant over the property and consequently decreed the suit in terms of the plaint. Challenging the said judgment and decree, the defendant filed A.S. No. 141 of 2002 before the District Court, Palakkad. The learned I Additional District Judge, Palakkad dismissed the appeal by concurring with the findings entered by the trial court, and hence the second appeal. 6. This second appeal has been admitted by this Court on the following substantial questions of law: "1. When the testamentary capacity is not disputed and the execution of the Will was duly proved with corroborating evidence of DW2 & DW3, whether the courts bellow are justified in disbelieving Exhibit-B5, Will? 2. While evaluating the Will, the courts below were not justified in adopting hyper technical yardsticks while ignoring other relevant facts like the age of the Will and the contents which justified the execution of the Will? 3. Whether the courts below were justified in not considering the claim for equity and reservation made by the appellant for setting apart the residential house, where he has been residing, in his favor?" 7. Heard the learned counsel for the appellant and the learned counsel for the respondent. 8. The contentions taken up by the defendant in the first written statement and the second written statement are totally contradictory. Initially, he has chosen to rely on the title of Balan over the plaint schedule property and forwarded a claim through Exhibit-B5 unregistered Will allegedly executed by Balan. Thereafter, through the second written statement, he has chosen to claim independent title over the property by claiming half right over the property as a cultivating tenant along with Balan. In fact, the defendant could not have filed any such a second written statement in view of Order VIII Rule 9 C.P.C. when leave has not been obtained from the trial court. Either the trial court or the lower appellate court should not have considered the second written statement in view of Order VIII Rule 9 C.P.C. At the same time, when a new contention, which was contradictory to the contentions resorted to in the first written statement, was taken up in the second written statement, the plaintiff can make use of it, to contradict the versions of the defendant in the first written statement. 9. 9. Regarding Exhibit-B5 Will, this Court has gone through it. Technically speaking, it seems that Exhibit-B5 has been proved through DW2 and DW3, who were the so called attesting witnesses. At the same time, it seems that there are conscious attempts to scratch off the signatures of Balan shown on the first and second pages of Exhibit-B5 Will. It is an unregistered document. Of course, a Will is not a compulsorily registrable document. At the same time, it is trite law that it is for the propounder of the Will to dispel all the suspicious circumstances exist in the execution of the Will. 10. The plaintiff has denied the execution of Exhibit-B5 and has taken up a contention that it is a forged one. The entire burden is on the defendant to prove the making of Exhibit-B5 as well as to prove the genuineness of its contents. It seems that by using some liquid or water, the signatures shown as those of Balan at the bottom of the first page of Exhibit-B5 as well as at the middle of its second page were scratched off, and the signatures are not at all visible. It has to be considered that it was a conscious and deliberate attempt to deny the comparison of the signatures of Balan with the signatures allegedly affixed as those of Balan in Exhibit-B5. That itself is sufficient to discard Exhibit- B5. Both the courts below have concurrently chosen to disbelieve Exhibit-B5. When such findings of facts are there relating to Exhibit-B5 by both the courts below, the said question need not again be considered in the second appeal. The said question does not arise in the second appeal. 11. Regarding the other claim of the defendant in respect of the independent right over the half portion of the plaint schedule property by styling himself as one of the cultivating tenants along with Balan, the said contention cannot be considered at all, when it was not taken up through the first written statement. Even otherwise, the said contention is not believable, in view of the clear admissions of the defendant in the first written statement. Even otherwise, the said contention is not believable, in view of the clear admissions of the defendant in the first written statement. Even though the plaintiff has made an effort as PW1 to set up a case that the defendant is not born to Balan; whereas the defendant was born to one Ravunni @ Thankamama, who is the elder brother of Balan, when it is clearly admitted in the plaint that the defendant is the son of Balan, the plaintiff cannot be heard to say that the defendant is born to some other person. I do not find any merit in the second appeal. There is absolutely nothing to interfere with the concurrent findings entered by both the courts below. Therefore, the second appeal fails and is dismissed. In the nature of this appeal, the parties shall bear their respective costs.