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2017 Supreme(Ker) 3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
B. KEMAL PASHA, J.
SUDHAKARAN - APPELLANTS
Vs.
RAGINI AND ORS. - RESPONDENTS
RSA No. 597 of 2014
Decided On : 04-01-2017
FOR THE APPELLANT : SMT. V.K. HEMA
FOR THE RESPONDENTS: SRI. SYAM J. SAM, CIBIN C. VARGHESE, SRI. K. NARAYANAN (PARUR), SRI. DEEPAK JOY. K.
The duty of the propounder to prove the due and valid execution of a Will and to dispel all suspicious circumstances surrounding its execution.
Headnote:
Will - Partition - Indian Succession Act, Indian Evidence Act
Fact of the Case:
The case involved a dispute over the partition of properties and the validity of an unregistered Will bequeathing the properties. The plaintiff sought partition of the properties based on the alleged Will, while the defendant contended that the Will was forged and not executed by the deceased.
Finding of the Court:
The court found that the Will was not genuine and failed to dispel the suspicious circumstances surrounding its execution. It also held that the suit for partition was not maintainable as there was no divisible interest in the properties. The court dismissed the appeal and held the second appeal as not maintainable.
Issues: Validity of the unregistered Will, maintainability of the suit for partition, possession of the properties
Ratio Decidendi: The court emphasized the need to prove the due and valid execution of a Will and the duty of the propounder to dispel all suspicious circumstances. It also highlighted the requirements for proving the execution of a document as per the Indian Succession Act and the Indian Evidence Act.
Final Decision: The court dismissed the appeal, held the suit for partition as not maintainable, and deemed the second appeal as not maintainable.
Challenging the concurrent findings entered by the Additional Sub Court, North Paravur in O.S.No.378/2007 and the Additional Sessions Court, North Paravur in A.S.No.35/2011, the plaintiff in O.S.No.378/2007 of the Additional Sub Court, North Paravur has come up with this second appeal.
2. The suit is one for partition. The properties involved were allotted to late Gopalakrishnan, through Ext.A1 partition deed, and another sale deed. Plaintiff Sudhakaran is the elder brother of late Gopalakrishnan. The 2nd respondent is the son of the plaintiff. Respondents 3 and 4 are the sisters of the plaintiff and late Gopalakrishnan. Gopalakrishnan died on 9.12.2006. He had married the first respondent herein Ragini just three years prior to his death, at the age of forty. No children were born in their wedlock. It has come out that almost three years of their marital life, all along, Gopalakrishnan continued be a cancer patient, and finally he succumbed to his illness.
3. An extent of 21 cents of property and the family house situated thereon was allotted to Gopalakrishnan through Ext.A1 Partition deed. The case of the plaintiff is that Gopalakrishnan had executed Ext.A2 unregistered Will on 29.09.2006 thereby bequeathing 8 cents of property out of the said 21 cents of property to the plaintiff, 2¾ cents of property from one survey number and another two cents of property from another survey number to the 2nd respondent, and eight cents of property to the first respondent herein. Another 14 cents of property had also devolved on late Gopalakrishnan through a sale deed. Through the said Will, it is alleged that late Gopalakrishnan has bequeathed that 14 cents of property to respondents 3 and 4 in equal shares. According to the plaintiff, even though he had requested for a partition and separate possession of the properties, the first respondent was not willing to have a partition and hence the suit.
4. The first respondent contended that Ext.A2 Will is nothing but an outcome of forgery, and the same was not executed by late Gopalakrishnan. According to the first respondent, she was looking after all the affairs of Gopalakrishnan till his death and all along she was present with Gopalakrishnan when he was hospitalised. All the hospital expenses were met by her. Further, according to her, even after the death of Gopalakrishnan, the plaint schedule properties and the house thereon was under her possession, and while so, the plaintiff forcibly occupied one of the rooms in the said house on 05.02.2007. It is also contended that the suit is not maintainable.
5. On the side of the plaintiff, PW1 and PW2 were examined and Exts.A1 and A2 were marked. On the side of the first respondent, she was examined as DW1 and Exts.B1 to B3 were marked. The trial court has totally disbelieved Ext.A2 Will and consequently dismissed the suit. The matter was taken up in appeal before the first appellate court. The first appellate court also concurred with the findings entered by the trial court and dismissed the appeal.
6. Even though a contention that the suit is not maintainable has been taken up in the written statement, it seems that the said issue has not been properly considered by both the courts below. Even if the case of the plaintiff is believed, a suit for partition is not at all maintainable. The plaintiff has no case that any divisible interest which has not been partitioned is in existence in the properties in question. At the most, the plaintiff could have preferred a suit for declaration of title and recovery of possession in case his possession was obstructed or the first respondent has been in unlawful possession of the property. The learned counsel for the first respondent has rightly pointed out that it is in order to escape from the payment of court fee for filing an experimental suit, that the present method has been adopted by the plaintiff by filing a suit for partition. The said contention seems to be correct. When separate shares hav
