Allowed

Tizeema v. M.Saji Hassan

Kerala HC12 Jun 2017AS/221/2000

Case brief

AI extract

What is this about?

The High Court of Kerala allowed the appeal maintenance application. The court upheld the validity of a bequest in favour of the first defendant as the signature was confirmed by forensic evidence and the testator satisfied requirements under the Succession Act and Evidence Act. However, the bequest was limited to one-third of the property under Mohammedan Law, with the remaining two-thirds devolv

What did the court decide?

The appeal was allowed. The preliminary decree for partition was confirmed. The plaintiffs are entitled to their share in the remaining two-thirds of the property.

Tizeema Vs M.Saji Hassan — Succession and Inheritance | Kerala HC (2017)

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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 V.CHITAMBARESH & THE HONOURABLE MR. JUSTICE SATHISH NINAN

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MONDAY, THE 12TH DAY OF JUNE 2017/22ND JYAISHTA, 1939

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AS.No. 221 of 2000 (E)

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AGAINST THE JUDGMENT IN OS 683/1993 of ADDL.SUB COURT,KOTTAYAM DATED 30-06-1999

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APPELLANT(S): PLAINTIFFS

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NIZEEMA, W/O.NISSAR HASSAN RESIDING AT PUTHEN BUNGALOW, BEACH NORTH, KOLLAM - 6.

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NESKET BUSSAR, S/O.NISSAN HASSAN (MINOR) REPRESENTED BY NEXT FRIEND NIZEEMA PUTHEN BUNGALOW, BEACH NORTH, KOLLAM - 6.

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BY ADVS.SRI.S.V.BALAKRISHNA IYER (SR.)

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SRI.P.B.KRISHNAN SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE SRI.T.P.VARGHESE

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RESPONDENT(S): DEFENDANTS:

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M. SAJI HASSAN, S/O.A.MUHAMMED HASSAN, NELLITHANATHU RUBY MANZIL, VAZHAPPALLY EAST, CHANGANACHERRY.

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SUNNY JOSEPH, S/O.JOSEPH PROPRIETOR, KORIPPALLY KARA, CHANGANACHERRY.

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BABU JOSEPH, S/O.JOSEPH PROPRIETOR, BROTHER'S FANCY STORES KAVALA, CHANGANACHERRY.

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P.M.ABDUL AZEEZ, PROPRIETOR, KOHINOOR FANCY STORES CENTRAL JUNCTION, CHANGANACHERRY.

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MATHUKUTTY XAVIER RAJEEV AUTO PARTS, CENTRAL JUNCTION, CHANGANACHERRY.

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P.T.JOSEPH, MANAGING DIRECTOR, CARAVAN GOODS CARRIERS (P) LTD. CHANGANACHERRY.

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AS.NO.221/2000

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: 2 :

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SULAIMAN, PROPRIETOR, VIDEO LIBRARY, CENTRAL JUNCTION, CHANGANACHERRY.

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BABYCHAN, PROPRIETOR BROTHER'S STATIONERY MUNICIPAL ARCHIVES, CHANGANACHERRY

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SAJU MUKKADAN, PROPRIETOR MUKKADAN ELECTRICALS CENTRAL JUNCTION, CHANGANACHERRY.

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MUHAMMED SHERIFF, S/O.MUHAMMED ABDUL KHADER RAWTHER MAIDEEN PARAMBIL, PUZHAVATHU, CHANGANACHERRY. R, R1 BY ADV. SRI.JOHN JOSEPH VETTIKAD R,R1O BY ADV. SRI.M.NARENDRA KUMAR

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THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 08-06-2017, THE COURT ON 12-06-2017 DELIVERED THE FOLLOWING:

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V.CHITAMBARESH & SATHISH NINAN, JJ.

A.S.No. 221 of 2000

Dated this the 12^th day of June, 2017

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J U D G M E N T

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Chitambaresh, J.

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The genuineness of Ext.B1 Will executed by one Nizar Hassan (who was the husband of the first plaintiff and the father of the second plaintiff) and the legality of the bequest therein falls for consideration. Nizar Hassan is said to have bequeathed his entire property thereunder in favour of the first defendant (who is the son of Nizar Hassan's father born in his second wife) . The signature of Nizar Hassan in Ext.B1 Will has been identified by the sixth defendant (an employee of Nizar Hassan) who was acquainted with the same and examined as DW.1. The first defendant who was the legatee was examined as DW.4 and his mother to whom Nizar Hassan is said to have entrusted Ext.B1 Will after registration

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AS.No.221/2000

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was examined as DW.6 in the case.

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The first attesting witness to Ext.B1 Will has been examined as DW.2 and the second attesting witness who is

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also the scribe has been examined as DW.3 who have withstood the test of cross examination. Their evidence satisfies the compliance of Section 63 of the Succession Act and Section 68 of the Evidence Act and there is no impediment in law for a scribe to act as an attestor. Even the Sub Registrar who registered Ext.B1 Will and had identified Nizar Hassan as per the endorsement therein was examined as DW.5 to dispel all suspicious circumstances. The fact that Nizar Hassan was aged only 30 years at the time of execution of Ext.B1 Will or that he had disinherited the plaintiffs who are his natural heirs is of no consequence. It is in evidence that MC.No.45/1985 was filed claiming maintenance for the plaintiffs against Nizar Hassan and that Ext.B1 Will was executed soon after Ext.B2

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AS.No.221/2000

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statement was filed in the proceedings. Suffice it to say that no love was lost between the plaintiffs and Nizar Hassan which would have prompted him to execute Ext.B1 Will in favour of the first defendant who is also related.

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Both the plaintiffs as well as the first defendant filed I.A.Nos.2491/2012 and 2683/2012 in this Appeal Suit seeking to forward the documents to a handwriting expert for opinion as regards signatures. The applications were allowed and the concluding part of the report dated 23.10.2013 obtained from the Forensic Science Laboratory, Thiruvananthapuram is extracted below:-

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“The questioned items compared with the standards marked A14 to A17. On comparison the questioned signatures agree with the standards in significant individual writing characteristics such as the following:i) The manner of writing the initial letter 'M' ii) The manner of writing the letter 'n' iii) The manner of writing the letter 'h'

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AS.No.221/2000

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iv) The manner of writing the letter 'a' v) The manner of writing the letter 's' vi) The manner of writing the combination 'ss' vii) The manner of writing the combination 'an' viii) The manner of writing the terminal letter 'n'

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ix) The manner of underscoring.

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In addition the questioned items agree with the standards in general writing characteristics such as skill, speed, movement, alignment etc. The similarities found between the questioned and standards are significant. There do not exist any material difference also between them. These similarities are not due to any accidental coincidence or attempted imitation but are only due to common authorship. Hence the result.”

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We notice that neither the plaintiffs nor the first defendant

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have filed any objection to the opinion of the expert warranting further elucidation in evidence and the report concurs with the finding of the court below.

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The finding of the court below as regards the

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AS.No.221/2000

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genuineness and validity of Ext.B1 Will is rested on evidence and the same has to be affirmed even if we eschew the report of the handwriting expert in toto. That there is no appreciable variation in the signatures found in Ext.B1 Will with other documents containing the admitted signatures can be found even by a comparison with naked eye. The wisdom of the expert to compare the signatures in Ext.B1 Will with the standard items marked A14 to A17 in the report is beyond any judicial review in the circumstances. All the suspicious circumstances surrounding the due execution of Ext.B1 Will have been dispelled by the first defendant as the propounder and the same has to be found genuine. We are not prepared to accept the contention of the plaintiffs about their alleged cordial relationship with Nazir Hassan making the execution of Ext.B1 Will as improbable. The evidence on record particularly Exts.A6 and A7 letters on the other hand indicate that the first

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AS.No.221/2000

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plaintiff was staying away even though Nazir Hassan was prepared to take a separate house on rent. The slight delay of about four months in getting Ext.B1 Will registered is also not of much relevance in as much as it was Nazir Hassan himself who presented the document for registration.

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The bequest under Ext.B1 Will in favour of the first defendant cannot exceed one-third of the property of the testator as per the Mohammedan Law and the bequest in regard to the remaining two-thirds is inoperative. The plaintiffs are undoubtedly entitled to a share over the remaining two-third property of Nizar Hassan as has been correctly found by the court below. The share of the first plaintiff is one-eighth and the balance seven-eighth share over the two-third property of Nizar Hassan would devolve on his son the second plaintiff. The preliminary decree for partition does not suffer from any infirmity in law warranting

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AS.No.221/2000

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interference and the same is confirmed leaving open the right

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to apply for passing a final decree.

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The Appeal Suit is dismissed. No costs.

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Sd/V.CHITAMBARESH, JUDGE

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Sd/SATHISH NINAN, JUDGE

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nj/.06.2017

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//True copy//

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P.S. to Judge.

Tizeema v. M.Saji Hassan

Case brief

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What did the court decide?

Tizeema v. M.Saji Hassan

Case brief

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