This appeal arises from a partition suit where the third defendant claimed adverse possession and reliance on an alleged will. The High Court dismissed the appeal, finding suspicious circumstances regarding the will's post-mortem concealment and rejecting the adverse possession claim as inconsistent. Headnotes
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
MONDAY, THE 11TH DAY OF OCTOBER 2021 / 19TH ASWINA, 1943
RFA NO. 460 OF 2007
AGAINST THE ORDER/JUDGMENT IN OS 58/2004 OF SUB COURT, KOYILANDY, KOZHIKODE
APPELLANT/3RD DEFENDANT:
EDAVALATH RAJAN
THRIKKUTTISSERY AMSOM, VAKAYAD DESOM, KOYILANDY TALUK, P.O.VAKAYAD, VIA NADUVANNUR.
BY ADVS.
B.KRISHNA MANI SIBHA.S JOSEPH.T.JOHN SIJU RAJAN
RESPONDENTS/PLAINTIFFS & DEFENDANTS 1 & 2:
(LRS OF THE DECEASED R2 ARE IMPLEADED AS ADDL.R5 & ADDL.R6 VIDE ORDER DATED 11.10.21 IN IA 2/19.)
(THE APPELLANT AND R1,R3& R4 ARE RECORDED AS THE LEGAL HEIRS OF THE DECEASED R2 VIDE ORDER DATED 11/10/2021 IN IA 3/2019.)
BY ADV SRI.K.B.ARUNKUMAR
THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON 11.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
RFA NO. 460 OF 2007
2
JUDGMENT
A suit for partition was contested by the 3rd defendant claiming adverse possession from the date of death of the owner of the property i.e. the mother. In the written statement submitted, yet another contention was also taken based on the information supplied by his uncle with respect to the existence of a Will alleged to have been left out by the mother. Nothing else was mentioned or pleaded in the written statement with respect to nature or content of the Will or its date of execution, though the testator died in the year 1985. A written statement was submitted in the suit which was instituted after the expiry of 20 years from the date of death of testator. Till that time, no claim was raised by the propounder, 3rd defendant, based on the said Will. Even he was not aware of the content of
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the Will or date of its execution at the time when the written statement was submitted. What is pleaded in the written statement is that his uncle told him about a Will left out, which according to him was not handed over to him at any point of time within the period of 20 years. It was brought in evidence by examining the uncle as DW2 through a Commission. Indisputably, the uncle DW2 was in inimical terms with the plaintiffs. It is not clear why the propounder did not initiate any action to procure the Will from the custody of his uncle DW2 for a long period of 20 years. On the other hand, a strict scrutiny of oral evidence tendered by the propounder and DW2 uncle would clearly show the malpractice behind it. The Will is dated back 13/12/1983 and the testator passed away in the year 1985. It was kept in darkness by DW2 for the reason best known to him for a period of more than 20
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years after the death of testator. It is an unregistered Will, wherein DW2 uncle is one of the attesting witnesses, who is admittedly in inimical terms with the plaintiffs herein. He had no explanation why it was not given to the propounder, the 3rd defendant for the said period of more than 20 years. The fact that he had kept the Will for more than 20 years after the death of testator would cast reasonable doubt to his credibility. The other attesting witness was not examined. It
is upon the propounder to clear out all suspicious circumstances attached to its execution. It was kept in darkness for more than 20 years by the propounder and the fact that no steps were taken to procure the original of the Will and no claim was raised within that time would sufficiently show the collusion and connivance between the propounder and the so called uncle DW2. At
RFA NO. 460 OF 2007
this juncture, it has to be borne in mind that the propounder never raised any right over the property even after the lapse of 20 years. On the other hand, what is claimed in the written statement is acquisition of right, title and interest by adverse possession and limitation without the pleading of any act of ouster against the other co-owners, the plaintiffs. Further, the claim raised in the written statement based on the abovesaid Will is not specific and mutually destructive with the claim of adverse possession and limitation. Hence, the appeal fails, dismissed.
Sd/-
P.SOMARAJAN
JUDGE
SPV
1 issue framed by the court
Whether a will executing for will is valid and whether the appellant has established adverse possession.
EDAVALATH RAJAN
EDAVALATH JANAKI
P. SOMARAJAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
