Back
2021 Supreme(Ker) 1027
IN THE HIGH COURT OF KERALA AT ERNAKULAM
A.K. JAYASANKARAN NAMBIAR, MOHAMMED NIAS C.P., JJ.
Sabitha K.V. – Appellant
Versus
Satheesan K.V. – Respondent
W.A. Nos. 463, 464, 465 of 2021
Decided On : 16-12-2021
Advocate Appeared:
For the Appellants : Mahesh V. Ramakrishnan, N.N. Sugunapalan.
For the Respondents: K. Jaju Babu, T.K. Vipindas, K.V. Sree Vinayakan, K.M. Muhammed Hussain.
Point of Law : In all cases where a Will is set up, the procedure prescribed under Section 68 of the Indian Evidence Act, 1872, will have to be followed.
Headnote:
Indian Evidence Act, 1872 - Section 68- Will - Burden of the propounder of the Will - Genuineness of the Will – Order whereby the learned Single Judge relegated the dispute among the legal heirs regarding the right to manage two institutions.
Finding of the Court:
To explain the suspicious circumstances, if any, surrounding the execution of the Will. Section 68 of the Evidence Act does not contain any distinction between an admitted Will and disputed Will as regards the mode of proof. Due execution of the Will cannot be proved otherwise than by a recourse to Section 68 of the Evidence Act and Section 63 of the Indian Succession Act, 1925. It has to be seen that in the instant case all the other legal heirs except the propounder disputes the Will as a fraudulently created one. In view of the said position, the arguments of the learned senior counsel for the appellant that the respondents know the existence of a Will, therefore, it must be taken to be valid till it is set aside at the instance of the respondents cannot be countenanced at all- nothing wrong in the educational authorities declining to accept the recitals in the Will or to confer any benefit on the basis of the said Will.
Result: Appeals dismissed
JUDGMENT :
1. These appeals arise from the common judgment in W.P. (C) No. 24498 of 2017, 21246 of 2016 and 37814 of 2015, whereby the learned Single Judge relegated the dispute among the legal heirs regarding the right to manage two institutions by name Sree Narayana Teachers Institute, Nileshwar and Sree Narayana Aided U.P. School, Padannakad (hereinafter referred to as ‘the schools’ for short) to the Educational Authority for appropriate decisions regarding the membership in terms of the Kerala Education Act and Rules. The material facts require for deciding the appeals are as follows:
Late K.V. Kunhambu established the above institutions and was the Manager till his death on 11.08.1978, after which his wife Sathyabhama became the Manager as per the Will of Kunhambu dated 10.05.1978 and she continued as such till her death on 12.08.2013, following which disputes started among their seven children about the managership. While Sabitha K.V. the appellant in W.A No. 463 of 2021 staked her claim on the basis of an unregistered Will allegedly executed by her mother on 27.10.2009 bequeathing her right to manage exclusively, Sri. Satheesan K.V. the elder son who had the support of all the remaining five siblings claimed managership on that ground.
2. On 02.09.2013 Sabitha K.V. staked her claim for managership by letter dated 2.9.2013, while Satheesan K.V. with the support of the remaining legal heirs successfully made a claim on 4.10.2013 and was appointed as Manager by Ext.P3 order on 11.10.2013 by the 4th respondent and which was approved by the DPI by Ext.P4 order on 31.10.2013. Sabitha K.V. appealed against Exts.P3 and P4 orders, which was disposed of by Ext.P5 holding that the Will set up by her cannot be accepted and that a scheme has to be framed being a corporate educational agency, within a period of six months. Thereafter, there were exchange of letters between both the parties and ultimately by Ext.P13, the Government by order dated 16.10.2015 appointed Satheesan K.V. as the Manager again with a condition that no appointment shall be made as the byelaw has to be with the junction of all the legal heirs. Consequential order was passed by the DEO on 12.11.2015 by Ext.P14. These orders, Exts.P13 and P14 were challenged by Sabitha K.V. by filing W.P. (C) No. 37814 of 2015. No interim order was granted in the said writ petition. Satheesan K.V. on the other hand filed W.P. (C) No. 21246 of 2016 challenging the restrictions placed in Exts.P13 and P14 on him while acting as Manager. Later, by Ext.P23 order dated 17.07.2021 the Government appointed the Deputy Director of Education as the Manager till the resolution of disputes among the legal heirs. The said order was challenged by Satheesan K.V. in W.P. (C) No. 24498 of 2017. The learned Single Judge by the common judgment under appeal in the three writ petitions mentioned above directed the Deputy Director of Education, Kasargode, the 4th respondent herein to call for a meeting of all the members of the corporate educational agency and also to grant an opportunity to Sabitha K.V. the appellant herein to raise objections to the bye-law framed by Satheesan K.V. and five other siblings, and also to give the appellant an opportunity of producing an independent byelaw of her own and then to take a decision on approving the final byelaw for the management of the schools in terms of the applicable provisions of the Act and the KER. Till such a decision was taken, Ext.P23 order by which the 4th respondent was appointed a the Manager by the order of the Government was allowed to remain in force.
3. Heard Sri. N. Sugunapalan, the learned senior counsel for the appellants, duly instructed by Advocate Mahesh V. Ramakrishnan, Sri. Jaju Babu, the learned Senior counsel, instructed by Advocate T.K. Vipindas appearing for the first respondent and the learned Government Pleader for the official respondents.
4. The learned Senior counsel would also rely on the judgment in Somanatha Pillai vs. State o
