Allowed

Nanukuttan Swami v. B.Baby

Kerala HC21 Aug 2019RFA/881/2010

Case brief

AI extract

What is this about?

Appeal against dismissal of suit for declaration and injunction regarding inheritance. Court upheld trial court's finding that the alleged will was not genuine and passed a preliminary decree for partition of assets among legal heirs.

What did the court decide?

Preliminary decree for partition of assets among five equal shares (Plaintiffs 1&2, Defendant 1, and Defendants 2-4). Parties at liberty to execute final decree.

Nanukuttan Swami Vs B.Baby — Maintenance and Alimony | Kerala HC (2019)

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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 SATHISH NINAN

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WEDNESDAY, THE 21ST DAY OF AUGUST 2019 / 30TH SRAVANA, 1941

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RFA.No.881 OF 2010

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AGAINST THE JUDGMENT DT.16.11.10 IN OS 188/2007 OF SUB COURT, NEYYATTINKARA

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APPELLANTS/PLAINTIFFS:

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1 NANUKUTTAN SWAMI, S/O KOCHURAMAN, PADMAVILASOM BUNGLOW, IDAVAL, OTTASEKHARAMANGALAM P.O., NEYYATTINKARA.

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2 RAJAMMA @ ROSAMMA, W/O.NANUKUTTAN SWAMI PADMAVILASOM BUNGLOW, IDAVAL, OTTASEKHARAMANGALAM P.O., NEYYATTINKARA.

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3 SURESH KUMAR N.R., S/O.NANUKUTTAN SWAMI, PADMAVILASOM BUNGLOW, IDAVAL, OTTASEKHARAMANGALAM, P.O., NEYYATTINKARA.

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4 PADMAKUMARI N.R., D/O.NANUKUTTAN SWAMI, PADMAVILASOM BUNGLOW, IDAVAL, OTTASEKHARAMANGALAM P.O., NEYYATTINKARA.

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5 AJITHAKUMARI N.R., D/O.NANUKUTTAN SWAMI, PADMAVILASOM BUNGLOW, IDAVAL, OTTASEKHARAMANGALAM P.O., NEYYATTINKARA.

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BY ADVS. SRI.S.V.BALAKRISHNA IYER (SR.) SMT.M.HEMALATHA

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RESPONDENTS/DEFENDANTS:

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1 B.BABY, D/O BHARGAVI, NANDANAM VEEDU, INDIRA NAGAR, MGRA 124, PEROORKADA P.O., THIRUVANANTHAPURAM-695005.

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2 VISHNU M.KUMAR, S/O.B.BABY NANDANAM VEEDU, INDIRA NAGAR, MGRA 124, PEROORKADA P.O., THIRUVANANTHAPURAM-695005.

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RFA.No.881 OF 2010 -2-

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3 ARUN M.KUMAR, S/O.B.BABY, NANDANAM VEEDU, INDIRA NAGAR, MGRA 124, PEROORKADA P.O., THIRUVANANTHAPURAM-695005.

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4 M.SHEBI, D/O.MARYKUTTY, NANDANAM VEEDU, INDIRA NAGAR, MGRA 124, PEROORKADA P.O., THIRUVANANTHAPURAM-695005.

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5 COCHIN CORPORATION, REPRESENTED BY ITS SECRETARY, ERNAKULAM, COCHIN-18.

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R1-3 BY ADV. SRI.ABDUL RAOOF PALLIPATH R1- BY ADV. SRI.K.R.AVINASH KUNNATH R2-3 BY ADV. SRI.K.R.AVINASH R4 BY ADV. SRI.G.S.REGHUNATH R5 BY SRI.K.ANAND, SC, COCHIN CORPN.

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THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 20-08-2019, THE COURT ON 21-08-2019 DELIVERED THE FOLLOWING:

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SATHISH NINAN, J.

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= = = = = = = = = = = = = = = = = = RFA No.881 of 2010

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= = = = = = = = = = = = = = = = = = Dated this the 21^st day of August, 2019

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J U D G M E N T

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This appeal is by the plaintiffs in a suit for declaration and injunction. The suit was dismissed by the trial court.

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The subject matter involved in the

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litigation is the assets that belonged to late N.R.Madhukumar. Plaintiffs 1 and 2 are the father and the mother, and plaintiffs 4 and 5 are the siblings, of the said Madhukumar. Defendant 1 is the wife of Madhukumar and defendants 2 and 3 are the children born to them. The 4^th defendant is the child born to Madhukumar stated to be in his earlier marriage with one Marykutty.

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Plaint 'A' schedule property has an extent of 5 cents and it stands in the name of Madhukumar and his wife the first defendant. The plaint 'B' schedule property has an extent of 8 cents and is in the name of Madhukumar. The dispute between the parties relate not only to the inheritance to the

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RFA No.881 of 2010

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said properties but also to the service benefits of Sri.Madhukumar who died in-harness.

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The claim of the plaintiffs is that as per Ext.A1 Will, which is the same as Ext.X7, dated 10.04.06 executed by Madhukumar, they alone are the legatees, and the defendants viz. the wife and children of Madhukumar, are excluded from inheritance.

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The defendants challenge the genuineness of Ext.A1 Will. It was contended that it is a fabricated document and that they are the legal heirs entitled to inherit Madhukumar. Accordingly, they prayed for dismissal of the suit.

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The trial court held against Ext.A1 Will and dismissed the suit. Challenging the same, this appeal.

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Heard learned Senior Counsel Sri.S.V. Balakrishna Iyer on behalf of the appellantsplaintiffs and Sri.G.S.Reghunath and Sri.Abdul Raoof Pallipath on behalf of the respondentsdefendants.

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The sole question that arises for

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RFA No.881 of 2010

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determination in this appeal is regarding the genuineness of Ext.A1 Will dated 10.04.2006 claimed to have been executed by Madhukumar. As noticed supra, the wife and children of Madhukumar has been totally disinherited under Ext.A1 Will. It is not in dispute that Madhukumar was suffering from illness including liver cirrhosis. It is not challenged that the relationship between Madhukumar and his wife the first defendant were so strained that they were living separately for years prior to his death and that the children were with the first defendant. As is revealed from the documents produced from either sides, there were litigations between Madhukumar and his wife the first defendant. According to the learned counsel for the appellants, this was the reason which prompted Madhukumar to execute Ext.A1 Will disinheriting his natural heirs viz. his wife and children. Though the submission of the learned Senior Counsel prima facie has some force, the other evidence available and circumstances in the case justify the conclusion arrived at by the trial court against

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RFA No.881 of 2010

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the genuineness of Ext.A1 Will.

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Madhukumar died on 27.06.2006. After his

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death, there were rival applications before the Tahsildar for issuance of legal heirship certificate. Ext.X5 is the application dated 19.07.2006 submitted by the first defendant. Ext.X2 is the application dated 21.07.06 for heirship submitted by the mother of the fourth defendantallegedly the former wife of Madhukumar. Ext.X2(a) is the intimation by the Tahsildar to the Village Officer to the effect that there are other claimants also for the heirship including the first defendant, the parents of Madhukumar etc. It is directed therein to obtain their statements also. Ext.X3 dated 10.10.06 is the statement filed by the plaintiffs 1 and 2 before the Village Officer, wherein defendants 1 to 4 have also been shown as the legal heirs of Madhukumar. Ext.X4 is the statement dated 08.02.07 submitted by the plaintiffs 1 and 2 before the Tahsildar with respect to the issuance of Legal Heirship Certificate. Therein also they have reiterated that

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RFA No.881 of 2010

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defendants 1 to 4 are also the legal heirs of late Madhukumar. If Ext.A1 Will was in existence, then definitely such statements would not have been made by plaintiffs 1 and 2.

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Going by the evidence of PW2, plaintiffs 1 and 2 came to know about the Will three months after the death of Mdhukumar. If that be so, definitely Exts.X3 and X4 statements would not have been made in October 2006 and February 2007. It is true that on 15.09.07 plaintiffs 1 and 2 submitted Ext.X6 before the Tahsildar claiming that the existence of the Will came to their knowledge then. There is no reason why if there existed such a Will, the same would not have been mentioned by the witnesses therein to the parents of the deceased for more than one year after the death of Madhukumar. One of the witnesses to Ext.A1, namely PW2 is a neighbour of Madhukumar.

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The second plaintiff as PW1 has stated that Madhukumar had great love and affection to his children. If that be so, it would be highly improbable that he would choose to disinherit his

RFA No.881 of 2010

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children.

The long delay in putting forward Ext.A1 Will creates much doubt and suspicion on its genuineness. The signature of Madhukumar on Ext.A1 Will is denied by the first defendant when examined as DW2. To prove the execution of Ext.A1 Will the second witness therein was examined as PW2. It has come out in evidence that he is the son of the second plaintiff's colleague. The trial court has found the evidence of PW2 to be interested and not acceptable. His evidence does not inspire confidence in the background of what is stated supra.

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The application filed by the plaintiffs at the fag end of the trial seeking reference to an expert for opinion on the signature, was rightly dismissed by the trial court. Though the learned Senior Counsel for the appellants would submit that the trial court went wrong in comparing the signatures in Ext.A1 with the other signatures of Madhukumar and forming an opinion therefrom, I do notice that the finding of the trial court

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RFA No.881 of 2010

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regarding the genuineness of Ext.A1 is not founded upon such comparison but was only incidental thereto.

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On the entire evidence, the court below held against the genuineness of Ext.A1. Materials are not placed before me to displace the said finding. I concur with the findings of the trial court against the genuineness of Ext.A1 Will.

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The learned Senior Counsel for the appellants would submit that if this Court concurs with the finding of the trial court regarding Ext.A1, still the second plaintiff who is the mother, the first defendant the wife and defendants 2 to 4 the children of Madhukumar, who are the only legal heirs of Madhukumar being on the array of parties, it would be just and proper that a decree for partition be passed rather than driving the parties to another litigation. The said course is agreeable to the respondents. That each would be entitled to equal shares, is not disputed. I am inclined to accept the request, in the interests of justice.

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RFA No.881 of 2010

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The mother(Plaintiff No.2), the wife and the children(defendants 1 to 4) being the legal heirs of late Madhukumar, each entitled to equal shares, I hold that one half right which Madhukumar had over the plaint 'A' schedule property, and the plaint 'B' schedule property in its entirety are liable to be partitioned into five equal shares. The second plaintiff and defendants 1 to 4 are entitled to 1/5 shares each. A preliminary decree for partition is passed accordingly. The parties are at liberty to approach the trial court for getting a final decree passed in terms of the above.

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The appeal is allowed as above. No costs.

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Sd/SATHISH NINAN JUDGE

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kns/-

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//True Copy//

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P.S. to Judge

Nanukuttan Swami v. B.Baby

Case brief

What is this about?

What did the court decide?

Nanukuttan Swami v. B.Baby

Case brief

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