Dismissed

M.R. Jayaprasad v. Devaky Amma Kamalakshy Amma & Others

Kerala HC14 Mar 2018AFA/50/1993

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed appeals filed by defendants challenging a Will executed by the testator in 1981. The Court upheld the Will's genuineness, confirmed the testator's sound mind, and allowed the bequest excluding other heirs while noting a prior settlement deed did not invalidate the Will.

What did the court decide?

Appeals dismissed confirming the decree for recovery of possession with mesne profits.

M.R. Jayaprasad Vs Devaky Amma Kamalakshy Amma… — Succession and Inheritance | Kerala HC (2018)

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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 &

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THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH

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WEDNESDAY, THE 14TH DAY OF MARCH 2018 / 23RD PHALGUNA, 1939

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AFA.No. 50 of 1993

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AGAINST THE ORDER/JUDGMENT IN A.S.NO.19/1986 OF HIGH COURT OF KERALA DATED 25-09-1992 AGAINST THE JUDGMENT IN O.S.NO.380/1981 OF ADDL.SUB COURT, ALAPPUZHA DATED 28-08-1984

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APPELLANT/2ND RESPONDENT/2ND DEFENDANT:

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M.R. JAYAPRASAD, THAMASSERRY MURI, PALAYEKKARA MURI,

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THIRUVALLA VILLAGE.

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BY ADV.SRI.K.MOHANAKANNAN

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RESPONDENTS/APPELLANT & RESPONDENTS 1 & 4/PLAINTIFF & DEFENDANTS 1 & 4:

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DEVAKY AMMA KAMALAKSHY AMMA, SREE RAMA ASRAMAM, BHAGAVATHYPURAM, THELLIYOOR MURI, EZHUMATTOOR VILLAGE.(DIED)

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K.K.OMANA AMMA, KRISHNA VILASOM, VELLIYARA MURI, AYIROOR VILLAGE.

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P.R.CHANDRASEKHARAN NAIR, PULIMUKHATTU HOUSE, EDAPPAVOOR MURI, AYIROOR VILLAGE.

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ADDITIONAL RESPONDENTS:

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D.GOPALAKRISHNAN NAIR,

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S/O. LATE P.R.DAMODARAN PILLAI, SREERAMA SADANAM, THELLIYOOR P.O., VENNIKKULAM (VIA), PATHANAMTHITTA – 689544.

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D. ANIL KUMAR, S/O. LATE P.R.DAMODARAN PILLAI, SREERAMA SADANAM, KURIYANNOOR (P.O.),

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THIRUVALLA,

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PATHANAMTHITTA DISTRICT.

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(ADDITIONAL RESPONDENTS 4 AND 5 ARE IMPLEADED AS ONLY LRS OF THE DECEASED

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1ST RESPONDENT AS PER ORDER DATED 1.1.2008 IN I.A.NOS.1039 & 3035 OF 2007)

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AFA50/1993

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-2-

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R1, R4 & R5 BY ADV. SRI.S.V.BALAKRISHNA IYER (SR.) ADV. SRI.K.JAYAKUMAR(SR.) ADV. SRI.P.B.KRISHNAN R2 BY ADV. SRI.P.R.VENKETESH

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THIS APPEAL FROM FIRST APPEAL HAVING BEEN FINALLY HEARD ALONG WITH AFA.NO.51/1993 ON 12.3.2018, THE COURT ON 14.3.2018 DELIVERED THE FOLLOWING:

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V. CHITAMBARESH & K.P.JYOTHINDRANATH, JJ.

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

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AFA Nos.50 & 51 of 1993

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

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Dated this the 14^th day of March, 2018

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Judgment

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Chitambaresh, J.

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1.The genuineness of Ext.A1 Will dated 12.3.1981 alleged to have been executed by one Govinda Pillai falls for consideration in these two appeals filed by defendants 2 and 1 respectively. The first defendant is the daughter in

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the first wife, the second defendant is the son in the second wife and the third defendant is the son in the first wife of the testator. The fourth defendant is the husband of the first defendant and the plaintiff is the third wife of the testator to whom the bequest is made in Ext.A1 Will to the exclusion of all other legal heirs.

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2.Ext.A1 Will has been duly proved by examining the two attesting witnesses as P.Ws.1 and 4 as well as the scribe

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AFA50 & 51/1993

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-: 2 :-

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examined as P.W.2 and we do not find any material incongruity in their evidence. The witnesses have seen the testator signing the Will and the testator has seen the witnesses attesting the Will in accordance with the provisions of the Evidence Act. We did compare the signature of the testator found in Ext.A1 Will and Ext.B2 settlement deed dated 6.12.1978 in accordance with Section 74 of the Evidence Act. We do not find any material dissimilarity in the signatures of the testator found in Ext.A1 Will and Ext.B2 settlement deed though they were executed in a span of three years.

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3.The evidence on record does not indicate that the testator was not in a sound disposing state of mind at the time of execution of Ext.A1 Will though he died within a period of 2½ months thereafter. The mere fact that other legal heirs except the plaintiff have been disinherited under Ext.A1 Will by itself is immaterial since its very execution is to

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AFA50 & 51/1993

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-: 3 :-

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alter the normal devolution. Yet another contention urged is that Ext.A1 Will is conspicuously silent about Ext.A2 settlement deed executed three years before in favour of the first defendant. That by itself is not a reason to discredit Ext.A1 Will and we concur with the concurrent finding that Ext.A2 settlement deed is valid in respect of the property conveyed thereunder.

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4.Only the property over which the testator had the disposing power could be bequeathed away and Ext.A1 Will can therefore operate over the property remaining after Ext.A2 settlement deed. The question of identity of the property covered by Ext.A1 Will after carving out the property covered by Ext.A2 settlement deed has been rightly relegated to the execution court. We concur with the learned single Judge that suspicious circumstances surrounding the due execution of Ext.A1 Will have been dispelled by the propounder. There is no necessity in law

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AFA50 & 51/1993

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-: 4 :-

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that the propounder himself should mount the box whereas the only insistence is that one of the two attesting

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witnesses has to be examined. The fourth defendant who was one of the respondents in the appeals had died and steps to bring his legal heirs on record are not complete as discernible from records. But the steps need not be complete for dismissing the appeals after hearing the appellant in both the appeals which have been pending in this Court for over 25 years. We concur with the learned single Judge and dismiss the appeals thereby confirming the decree granted for recovery of possession with mesne profits ascertainable in execution.

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The appeals against first appeals are dismissed. No costs.

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Sd/V. CHITAMBARESH, JUDGE

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Sd/K.P.JYOTHINDRANATH, JUDGE

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Sha/120318

M.R. Jayaprasad v. Devaky Amma Kamalakshy Amma & Others

Case brief

What is this about?

What did the court decide?

M.R. Jayaprasad v. Devaky Amma Kamalakshy Amma & Others

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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