Dismissed

T.P.Abraham v. Achamma Poulose(Died)

Kerala HC9 Jul 2019RSA/147/2009

Case brief

AI extract

What is this about?

A regular second appeal filed by the defendant (appellant) challenging the finding of concurrent lower courts in a partition suit. The High Court found no error in the lower courts determination that suspicious circumstances surrounding the Will's execution were not adequately dispelled by the propounder, thus dismissing the appeal.

What did the court decide?

The appeal is dismissed. No costs.

T.P.Abraham Vs Achamma Poulose(Died) — Succession and Inheritance | Kerala HC (2019)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR. JUSTICE P.SOMARAJAN

¶4

TUESDAY, THE 09TH DAY OF JULY 2019 / 18TH ASHADHA, 1941

¶5

RSA.No.147 of 2009

¶6

AGAINST THE JUDGMENT & DECREE DATED 04-04-2008 IN AS 174/2007 of SUB COURT, PERUMBAVOOR

¶7

AGAINST THE JUDGMENT & DECREE DATED 23-08-2007 IN OS 125/2004 of MUNSIFF COURT, PERUMBAVOOR

¶8

APPELLANT(APPELLANT IN THE LOWER APPELLATE COURT AND DEFENDANT IN THE TRIAL COURT:

¶9

T.P.ABRAHAM, S/O.LATE POULOSE, THATTAMPURAM HOUSE, CHUNDAKUZHI P.O., VENGOOR VIA.

¶10

BY ADVS. SRI.R.D.SHENOY (SR.) SRI.S.VINOD BHAT

¶11

RESPONDENTS (RESPONDENTS IN THE LOWER APPELLATE COURT AND PLAINTIFFS IN THE TRIAL COURT:

¶12

*1 ACHAMMA POULOSE(DIED) W/O.LATE POULOSE, PUTHIYAMATTOM VEEDU, POYYAKUNNAM KARA,, KIZHAKKAMBALAM VILLAGE, ERNAKULAM DISTRICT.

¶13

(RESPONDENT NO.1 DIED. APPELLANT AND RESPONDENTS 2 AND 3 ARE RECORDED AS THE LEGAL REPRESENTATIVES OF THE DECEASED 1ST RESPONDENT AS PER ORDER DATED 26.03.2019 ON VIDE MEMO DATED 11.03.2019).

¶14

2 LISSY, D/O.LATE POULOSE, PUTHIYAMATTOM VEEDU, POYYAKUNNAM KARA,, KIZHAKKAMBALAM VILLAGE, ERNAKULAM DISTRICT.

¶15

3 LIJA REJI, D/O.LATE POULOSE, PYIKATTIL, KUMARAPURAM, MORAKKALA WEST,, ERNAKULAM DISTRICT.

¶16

THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 09.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶17

RSA.No.147 of 2009 2

¶18

JUDGMENT

¶19

The defendant is the appellant came up with

¶20

this appeal aggrieved by the concurrent finding rendered by both the courts below in a suit for partition.

¶21

deceased father dated 8.6.2002 over which the defendant claims rights over the property. The entire property belonged to the father bequeathed to his two daughters and the son excluding the mother. The due execution and genuineness of Ext.B1 Will brought under challenge by the plaintiff. DW1 and DW3 were examined. DW1 and DW3 were examined in proof of the Will by the propounder, the

¶22

defendants in the suit to prove the due execution of the Will. Both the courts below concurrently

¶23

found that DW1 and DW3 cannot be relied on and found that there is failure to dispel suspicious

¶24

RSA.No.147 of 2009 3

¶25

circumstance attached to execution of Ext.B1 Will. Around 15 suspicious circumstance were raised and answered in connection with the execution of Ext.B1

¶26

Will by both the courts below. One among the ground raised is the execution of another document on the very same day a cancellation deed of

¶27

earlier settlement deed in favour of one of the

¶28

plaintiff. Admittedly, the cancellation deed was prepared and executed at the office of the very same scribe. But the cancellation deed was executed

¶29

and got it registered on the same day, that is

¶30

8.6.2002. It is true that a Will is not a

¶31

compulsorily registerable document. But the testator had opted to register a document on the date of execution of Ext.B1 Will. It also come out

¶32

in evidence that he was having the habit of registering all documents. But that was not adopted in the case of Ext.B1. It looms large when Ext.B1

¶33

was prepared by another scribe in the same office

¶34

RSA.No.147 of 2009 4

¶35

of the scribe. No satisfactory explanation forwarded by the propounder why it was not register

¶36

on the same day though it was prepared at the office of scribe who had prepared the cancellation deed and got it registered on the same day. At this juncture, yet another suspicious circumstance would also arise as to whether the signature of testator

¶37

had been obtained under the guise of preparation of

¶38

cancellation deed which was got executed and registered on the same day. The fact that the

¶39

cancellation of earlier settlement deed was executed and registered on the same day through the

¶40

office of the same scribe would be another

¶41

suspicious circumstance as the Will got executed on the same date was not registered. The further case of the proponder that the Will Ext.B1 was not taken

¶42

up by the testator from the office of the scribe.

¶43

But it was entrusted with the scribe and the

¶44

proponder was asked to take up the same from the

¶45

RSA.No.147 of 2009 5

¶46

scribe would also show elements of improbability especially when the testator had executed a cancellation deed on the same day. Every suspicious circumstance attached to the execution of the Will should be explained and dispelled by the proponder. The concurrent finding rendered on fact regarding suspicious circumstances attached to the execution of Ext.B1 Will, hence deserves no interference, unless the same found to be patently wrong and

¶47

perverse. Hence, appeal fails, deserves only

¶48

dismissal, but without costs.

¶49

This appeal is dismissed. No costs.

¶50

Sd/-

¶51

P.SOMARAJAN, JUDGE

¶52

¶53

// TRUE COPY // PA TO JUDGE

T.P.Abraham v. Achamma Poulose(Died)

Case brief

What is this about?

What did the court decide?

T.P.Abraham v. Achamma Poulose(Died)

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

Cherath Parambil Kandankutty,(Died) Vs Cherath Parambil Gopalan,(Died)

Smt.Kamala Vs Lakshmi (Struck Off)

Thomas and Others Vs Valsamma @ Kunjumol

Leelamma, Vs Rajan

Sathyapal M Vs Manappuram General Finance

R.Gangadharan Nair Vs Padmanabhan M.N.