Partly allowed

K.K.Santhappan v. Janaki

Kerala HC7 Jul 2017RFA/469/2003

Case brief

AI extract

What is this about?

In an appeal against a preliminary decree for partition, the High Court found the execution of the last will suspicious due to the testator's critical health condition and missing medical records. The Court allowed the appeal in part, setting aside the impugned judgment and remanding the case solely to decide on the validity of two earlier wills.

What did the court decide?

Impugned judgment and decree set aside; case remanded to decide exclusively on Ext.B2 and B1 Wills.

K.K.Santhappan Vs Janaki — Succession and Inheritance | Kerala HC (2017)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT: THE HONOURABLE MR.JUSTICE V.CHITAMBARESH & THE HONOURABLE MR. JUSTICE SATHISH NINAN FRIDAY, THE 7TH DAY OF JULY 2017/16TH ASHADHA, 1939 R.F.A.No.469 of 2003 (E)

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(AGAINST THE DECREE AND JUDGMENT IN O.S.No.9/1997 OF SUB COURT, CHERTHALA DATED 4-9-2003)

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APPELLANT/DEFENDANT:

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K.K. SANTHAPPAN, SON OF K.E. KARUNAKARA THANDAR, RESIDING AT KURUNTHODATHU, THANNEERMUKKOM MURI, THANNEERMUKKAM VADAKKU VILLAGE, CHERTHALA.

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BY ADVS.SRI.T.KRISHNAN UNNI (SR.) SRI.VINOD RAVINDRANATH SRI.P.K.MOHANAN(PALAKKAD)

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RESPONDENTS/PLAINTIFFS:

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JANAKI WIFE OF KARUNAKARA THANDAR, RESIDING AT KARUNTHODATHU, THANNEERMUKKOM MURI, THANNEERMUKKAM VADAKKU VILLAGE, CHERTHALA. (DIED)

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K. SARADA, WIFE OF MOHANKUMAR, RESIDING AT VARENIL, EVOO VADAKKUM MURI, CHEPPAD VILLAGE, KARTHIKAPALLY TALUK.

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ADDL. 3. SMT. SOBHANA, W/O. LATE PURUSHOTHAMAN, PUTHUKKERIL VEEDU, THANNEERMUKKAM, CHERTHALA, PIN - 688 527.

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“ 4. SMT. SREETHA, D/O. LATE PURUSHOTHAMAN, PUTHUKKERIL VEEDU, THANNEERMUKKAM, CHERTHALA, PIN - 688 527.

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“ 5. SMT. SMITHA, D/O. LATE PURUSHOTHAMAN, PUTHUKKERIL VEEDU, THANNEERMUKKAM, CHERTHALA, PIN - 688 527.

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(FIRST RESPONDENT JANAKI EXPIRED AND HER LEGAL HEIRS ARE IMPLEADED AS ADDL. RESPONDENTS 3 TO 5 AS PER ORDER DT.7.7.2017 IN I.A.NO.4573 OF 2010)

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R1 & R2 BY ADV. SRI.S.CHANDRASENAN R1 & R2 BY ADV. SRI.S.DILEEP R1 & R2 BY ADV. SRI.FELIX.K.J.

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THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 05.07.2017, THE COURT ON 07.07.2017 DELIVERED THE FOLLOWING:

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V.CHITAMBARESH & SATHISH NINAN, JJ.

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= = = = = = = = = = = = = = = = = = = = = = = =

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R.F.A.No.469 of 2003

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= = = = = = = = = = = = = = = = = = = = = = = =

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Dated this the 7^th day of July, 2017

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JUDGMENT

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Chitambaresh, J.

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1.The first plaintiff is the second wife of Karunakara Thandar

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and the second plaintiff is the daughter born in the wedlock, while the defendant is the son born to Karunakara Thandar

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in his first wife. Karunakara Thandar is said to have executed Ext.B2 Will dated 10.3.1986, Ext.B1 Will dated 1.7.1996 and Ext.X2 Will dated 30.8.1996 in succession relating to the plaint schedule property. The plaintiffs sought partition on the premise that Karunakara Thandar died intestate which was resisted by the defendant on the basis of Ext.X2 Will. The court below has passed a preliminary decree for partition holding that the due

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RFA469/2003

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-: 2 :-

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execution of Ext.X2 Will is not proved against which the defendant has come up in appeal.

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2.It is in evidence that Karunakara Thandar was suffering from Cancer of Urinary Bladder which had reached the secondary stage and was admitted in Sree Narayana Medical Mission Hospital, Cherthala on 20.8.1996. Ext.X2 Will is alleged to have been executed 10 days after and Karunakara Thandar died on 18.9.1996 within a period of three weeks even while he remained as an inpatient in the hospital. The onus is therefore heavy on the propounder to show that Karunakara Thandar had a sound disposing state of mind at the time of execution of Ext.X2 Will. Ext.X1 inpatient register summoned from the hospital revealed that Karunakara Thandar was being treated by Dr.P.K.Chandy who was surprisingly not examined in the case.

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RFA469/2003

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-: 3 :-

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3.What is more intriguing is the fact that the case sheet pertaining to Karunakara Thandar is missing from the hospital records which would have indicated his general health condition at that time. Neither the Hospital Administrator examined as P.W.3 nor the Administrative Assistant examined as P.W.4 could offer any explanation for the 'missing' case sheet. The suggestion of the plaintiffs that the case sheet was stealthily removed by the wife of the defendant who is working in the same hospital as a Consultant Radiologist cannot be brushed aside. The evidence of the doctor examined as D.W.4 who allegedly issued Ext.B1(a) medical certificate is not trustworthy more so when her name does not find a place in Ext.X1 register.

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4.It is quite unusual for a duty doctor to issue a medical certificate granting permission to an inpatient to go out of the hospital certifying him to be fit and Ext.B1(a) certificate

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RFA469/2003

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on that score is suspicious. Her admission in evidence that such a certificate was issued at the instance of the defendant shows that the propounder of the Will has himself taken an active part in its execution. The plaintiffs have a specific case that the said medical certificate was issued only because the doctor (D.W.4) happened to be a colleague of the wife of the defendant working in the same hospital. It is difficult to believe that an inpatient in the secondary stage of cancer with uretic catheter would be in a sound disposing state of mind to execute Ext.X2 Will.

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5.The evidence of the attesting witnesses examined as D.Ws.2 and 6 as well as the scribe examined as D.W.5 are discrepant and do not inspire confidence as has been rightly opined by the court below. We concur with the court below that the suspicious circumstances surrounding the due execution of Ext.X2 Will have not been dispelled by the defendant who is

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RFA469/2003

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-: 5 :-

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the propounder. But that is not the end of the matter since the defendant makes a fervent plea to remand the case for

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an opportunity to prove Exts.B2 and B1 Wills in accordance with law. The defendant contends that steps in that regard were not taken only because he was under a bona fide belief that Ext.X2 Will would be upheld as being the last bequest made by Karunakara Thandar.

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6.We do feel that an opportunity should be afforded to the

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parties to lead further evidence on the genuineness and validity of Exts.B2 and B1 Wills in the peculiar circumstances of the case. The fact that the second plaintiff is the daughter born to Karunakara Thandar in the first plaintiff is expressly stated in the various documents which cannot be overlooked and this is also not seriously assailed. We set aside the impugned judgment and decree of the court below and remand the case solely to decide on Exts.B2 and B1 Wills as

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RFA469/2003

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-: 6 :-

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regards devolution of rights of parties. The parties shall appear in the court below on 1.8.2017 and every endeavour shall be made to dispose of the suit before the closure of courts for Christmas Vacation.

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The appeal is allowed in part. No costs.

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Sd/-

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V.CHITAMBARESH, JUDGE

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Sd/SATHISH NINAN, JUDGE

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Sha/060717

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-true copy-

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PS to Judge

K.K.Santhappan v. Janaki

Case brief

What is this about?

What did the court decide?

K.K.Santhappan v. Janaki

Case brief

What is this about?

What did the court decide?

What the court decided

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