IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM TH TUESDAY, THE 8 DAY OF APRIL 2025 / 18TH CHAITHRA, 1947 RSA NO. 504 OF 2012 AGAINST THE JUDGMENT&DECREE DATED 13.12.2011 IN AS NO.45 OF 2008 OF ADDITIONAL DISTRICT COURT, MAVELIKKARA ARISING OUT OF THE JUDGMENT&DECREE DATED 05.12.2007 IN OS NO.428 OF 2004 OF MUNSIFF COURT, MAVELIKKARA APPELLANT/APPELLANT/PLAINTIFF:

R. SASIKUMAR AGED ABOUT 47 YEARS, S.O. RAMAKRISHNAN, JEEVAN NIVAS, VETTIYAR MURI, VETTIYAR VILLAGE-FROM KALLIMEL MURI, VETTIYAR VILLAGE, MAVELIKKARA TALUK.

BY ADVS.

SRI.K.JAJU BABU SMT.DHANYA CHANDRAN SMT.M.U.VIJAYALAKSHMI RESPONDENT/APPELLANT/DEFENDANT:

K. SAVITHRI AGED 68 YEARS, W/O. LATE RAGHAVAN, KRIPASADANAM, VETTIYAR MURI, VETTIYAR VILLAGE, MAVELIKKARA TALUK, PIN-690101.

BY ADV SRI.K.SASIKUMAR THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 08.04.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

JUDGMENT

1. The appellant is the plaintiff in the suit. The suit was for declaration, recovery of possession and consequential injunction with respect to the plaint schedule property. The plaint schedule property is 4.30 Ares and the residential building therein originally belonged to one Raghavan.

2. Plaintiff is the brother's son of the said Raghavan. Defendant is the legally wedded wife of the said Raghavan. Raghavan and the defendant do not have any children. Raghavan died on 06.11.2004. The plaintiff claimed title over the plaint schedule property on the strength of Ext.A1 registered Will dated 04.12.2000 allegedly executed by Raghavan bequeathing the plaint schedule property in favour of the plaintiff.

3. Plaint allegations are that, as per the recitals in Ext.A1 Will, the defendant has got every right to reside along with the plaintiff in the plaint schedule property, the plaintiff has to maintain her as his mother; if the defendant intends to leave the residence with the plaintiff, the plaintiff has to pay Rs.50,000/- to the defendant; and an amount of Rs.20,000/- is to be given to one Sujatha who is the daughter of the brother of the defendant within three years from the date of death of Raghavan. When the defendant got knowledge about the Will after the death of Raghavan, the defendant tried to obstruct the plaintiff from enjoying the plaint schedule property and building therein and tried to make arrangements for the disposal of the property. The plaintiff is ready and willing to maintain the defendant as intended by Raghavan in Ext.A1 Will. Hence, the plaintiff prayed for a declaration of title and possession over the plaint schedule property, a permanent prohibitory injunction restraining the defendant from creating any encumbrance over the plaint schedule property and from alienating the property, and to recover possession of the plaint schedule property.

4. The defendant opposed the suit prayers by filing Written inter alia Statement contending, , that on the death of Raghavan the plaint schedule property devolved upon the defendant as the sole legal heir. The defendant renovated the residential building therein with the money obtained under Indira Awas Yojana Scheme and with the money obtained from her siblings. The building was constructed with the consent of Raghavan. Raghavan was not having any right in the building. Raghavan was sick and was not having sound mental capacity to execute the Will. Raghavan has not executed any Will. The signatures in Ext.A1 is not that of Raghavan. Raghavan was unable to understand the contents of the Will. For the last 15 years, the plaintiff was in enemical terms with Raghavan. The Will is not attested by two attesting witnesses. Even if it is found that Raghavan has executed the Will, it is an invalid document as there are no sufficient attestors for the same.

5. On the side of the plaintiff, the plaintiff was examined as PW1, the Doctor who treated Raghavan was examined as PW2, the Secretary of the Panchayat was examined as PW3, and the Scribe of Ext.A1 was examine