Dismissed

Kalyanikutty Amma v. Madhavikutty Amma

Kerala HC25 Jan 2016RSA/645/2013

Case brief

AI extract

What is this about?

In a second appeal concerning a title dispute arising from a will, the High Court of Kerala held that attesting witnesses who identified the will in court provided sufficient evidence under Sections 67 of the Evidence Act and 63(b) of the Succession Act. The appeal was dismissed.

What did the court decide?

The second appeal was dismissed, the appellants' arguments were rejected, and the lower court's judgment was affirmed.

Kalyanikutty Amma Vs Madhavikutty Amma — Partition | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR

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MONDAY, THE 25TH DAY OF JANUARY 2016/5TH MAGHA, 1937

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RSA.No. 645 of 2013 ()

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AS 318/2006 of ADDL.DISTRICT COURT, THRISSUR OS 794/1996 of I ADDL.SUB COURT, THRISSUR

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APPELLANT/1ST APPELLANT/1ST PLAINTIFF :

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KALYANIKUTTY AMMA, D/O. MOOTHEDATHU KESAVAN NAIR & W/O. MARAVANCHERY APPU MENON PERINGAVU VILLAGE, CHROOR DESOM, THRISSUR TALUK, NOW R/A.C/O.K P NAIR , KUNNATH HOUSE, NEAR ST.JOSEPH'S CHURCH, NORTH CHALAKUDY, THRISSUR-680307

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BY ADV. SRI.DINESH MATHEW J.MURICKEN

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RESPONDENTS/2ND APPELLANT & 1 TO 6/DEFENDANTS 2 TO 7 :

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1. MADHAVIKUTTY AMMA, AGED 75 YEARS, D/O. MOOTHEDATHU KESAVAN NAIR & W/O. POOMALA KRISHNANKUTTY MENON, PERINGAVU VILLAGE, CHEROOR DESOM, THRISSUR TALUK, NOW R/A.KUNNAMBATH HOUSE, KIZHAKKKUMPATTKARA, PERINGAVU VILLAGE, CHEROOR DESOM, THRISSUR TALUK PIN-680009

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2. NARAYANANKUTTY MENON, AGED 67 YEARS, S/O. MOOTHEDATHU KESAVAN NAIR VARADIYAM VILLAGE, DESOM, THRISSUR TALUK, NOW R/A.MANAZHI HOUSE, SUBRAMANIAN KOVIL ROAD, AVANNOOR P O, THRISSUR TALUK PIN-680001

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3. PARAMESWARAN, AGED 67 YEARS, S/O.MOOTHEDATHU KESAVANNAIR, KOPPATTU VEETTIL MUKKATTUKARA DESOM, THRISSUR TALUK, PIN-680507

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4. MADHAVA MENON,

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S/O.MOOTHEDATHU KESAVAN NAIR, MADAKKATHARA VILLAGE DESOM, THRISSUR TALUK, NOW R/A.KEEZHITTAVALAPPIL HOUSE PERAMANGALAM, THRISSUR-680545

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RSA.No. 645 of 2013 ()

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5. RAMAKRISHNAN, AGED 62 YEARS, S/O.MOOTHEDATHU KESAVAN NAIR, KIZHAKKUMPATTUKARA CHEMBUKKAVU VILLAGE, THRISSUR TALUK NOW R/A.KUNNAMBATH HOUSE, KIZHAKKUMPATTUKARA PERINGAVU VILLAGE, THRISSUR TALUK PIN-680009

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6. MUKUNDAN, AGED 53 YEARS, S/O.MOOTHEDATHU KESAVAN NAIR, OLLUKARA VILLAGE NELLIKUNNU DESOM, THRISSUR TALUK, PIN-680005

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7. KOCHAMMINI, AGED 79 YEARS, D/O. MOOTHEDATHU KESVAN NAIR, KIZHAKKUMPATTUKARA DESOM, CHEMBUKKAVU VILLAGE, THRISSUR TLAUK, NOW R/A.KKUNNAMBATH HOUSE, KIZHAKKUMPATTUKARA, PERINGAVU VILAGE, THRISSUR TALUK - PIN-680009

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R4 BY ADVS. SRI.THIYYANNOOR RAMAKRISHNAN SRI.ARUN KUMAR.P SMT.AMBIKA RADHAKRISHNAN R6 & R7 BY ADV. SRI.C.A.CHACKO BY ADV. SRI.SEBY JOSEPH

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 25-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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P.B.SURESH KUMAR, J.

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R.S.A.No.645 of 2013

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-----------------------------------------------Dated this the 25^th day of January, 2016

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JUDGMENT

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The first plaintiff in a suit for partition is the

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appellant in this second appeal.

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The suit property belonged to one Kesavan Nair. The plaintiffs and the defendants are the successors of Kesavan Nair. Th e plaintiffs filed the suit claiming 1/8^th share each in the suit property. The defendants contested the suit. According to them, by virtue of Ext.B1 Will executed by Kesavan Nair, they have obtained title to the suit property and therefore, the suit property is not partible. The trial court accepted the case set up by the defendants and dismissed the suit. Though the plaintiffs took up the matter

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R.S.A.No.645 of 2013

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in appeal, the appellate court confirmed the decision of the

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trial court and hence this second appeal.

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Heard the learned counsel for the appellant as also the learned counsel for respondents 6 and 7.

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The learned counsel for the appellant contended that Ext.B1 Will relied on by the defendants has not been proved in the proceedings before the Tribunal. According to the learned counsel, though the attesting witnesses to Ext.B1 Will namely, DWs.1 and 2 were examined, they did not identify the signatures of the testator as contained in Ext.B1 Will.

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I do not find any substance in the argument

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advanced by the learned counsel for the appellant. The evidence of the attesting witnesses were tendered in the form of chief affidavits. In the affidavits filed by the attesting witnesses, no doubt, it is stated by them that they have seen the testator subscribing his signatures in the Will

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R.S.A.No.645 of 2013

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executed by him and that they have put their signatures as attesting witnesses to the said document in the presence of the testator. Later, the attesting witnesses gave evidence in chief before the court to the effect that they have attested the Will executed by Kesavan Nair. In the course of the chief examination, the attesting witnesses have also identified Ext.B1 as the Will executed by Kesavan Nair. According to me, the aforesaid evidence tendered by the witnesses are sufficient compliance of Section 67 of the Indian Evidence Act as also Section 63(b) of the Indian Succession Act. The attesting witnesses have identified in court the Will referred to by them in the chief affidavit. Since the attesting witnesses have identified the Will in their evidence, it cannot be contended that they have not identified the signatures of the testator in the Will.

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There is, therefore, no merit in the second appeal and the same is accordingly dismissed. All the interlocutory

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R.S.A.No.645 of 2013

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applications in the appeal are closed.

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P.B.SURESH KUMAR, JUDGE.

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smm

Kalyanikutty Amma v. Madhavikutty Amma

Case brief

What is this about?

What did the court decide?

Kalyanikutty Amma v. Madhavikutty Amma

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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