Partly allowed

K.T.Krishnakumari v. v.K.Gouri Amma

Kerala HC25 Jan 2022RFA/440/2005

Case brief

AI extract

What is this about?

In an appeal against a partition decree where the trial court set aside a preliminary decree due to doubts about the authenticity of a Will's signature, the High Court held that mere comparison under the Evidence Act was insufficient. The appeal was partially allowed, remanding the matter to obtain expert opinion for signature verification.

What did the court decide?

The preliminary decree was set aside and the matter remanded to the trial court to take expert opinion on the signature of the testator on the Will.

K.T.Krishnakumari Vs v.K.Gouri Amma — Partition | Kerala HC (2022)

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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 P.SOMARAJAN

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TUESDAY, THE 25^th DAY OF JANUARY 2022 / 5TH MAGHA, 1943

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RFA NO. 440 OF 2005 (B)

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AGAINST THE JUDGMENT AND DECREE DATED 10.11.2004 IN OS No.158/2001 OF

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ADDITIONAL SUB COURT, THALASSERY

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APPELLANTS/PLAINTIFF:

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1 K.T.KRISHNA KUMARI, W/o LATE NARENDRAN NAMBIAR, AGED 62 YEARS, NO OCCUPATION, RESIDING AT “SAD GAMAYA”, PERINGALAM AMSOM, ANIYARAM DESOM, THALASSERY TALUK, KANNUR DISTRICT.

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2 K.T. DEVADAS, S/o KRISHNA KUMARI, AGED 37 YEARS, NO OCCUPATION, RESIDING AT “SAD GAMAYA”, PERINGALAM AMSOM, ANIYARAM DESOM, THALASSERY TALUK, KANNUR DISTRICT.

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3 K.T.DEEPA SOMAN, D/o KRISHNA KUMARI, AGED 35 YEARS, NO OCCUPATION, RESIDING AT “SAD GAMAYA”, PERINGALAM AMSOM, ANIYARAM DESOM, THALASSERY TALUK, KANNUR DISTRICT.

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4 K.T. SIVADAS, S/o KRISHNA KUMARI, AGED 34 YEARS, AGRICULTURIST, RESIDING AT “SAD GAMAYA”, PERINGALAM AMSOM, ANIYARAM DESOM, THALASSERY TALUK, KANNUR DISTRICT.

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5 K.T. SEEMA ASOKAN, D/o KRISHNA KUMARI, AGED 32 YEARS, NOW AT SHARJA, P.B.NO.360, REP. BY POWER OF ATTORNEY HOLDER K.T. DEEPA SOMAN, D/o NARENDRAN NAMBIAR, RESIDING AT “SAD GAMAYA”, PERINGALAM AMSOM, ANIYARAM DESOM, THALASSERY TALUK, KANNUR DISTRICT. BY ADV SRI.R.SURENDRAN

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RESPONDENTS/DEFENDANTS:

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1 V.K.GOURI AMMA, D/o PARVATHI, (DIED) LRs RECORDED AGED 79 YEARS, NO OCCUPATION, KAKKAROTT HOUSE, PERINGALAM AMSOM, ANIYARAM DESOM, THALASSERY TALUK, KANNUR DISTRICT.

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RFA No.440 of 2005

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2 V.K. RAJANI, D/o GOURI AMMA, AGED 47 YEARS, NO OCCUPATION, RESIDING AT “MADURA”, Z.C.NORTH ROAD, KOZHIKODE.

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3 V.K. AMBIKA VENUGOPAL, D/o GOURI AMMA, AGED 45 YEARS, NO OCCUPATION, POST BOX.NO.3164, ABUDHABI, U.A.E.

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4 V.K. RAJEEVAN, S/o GOURI AMMA, AGED 44 YEARS, BUSINESS, KAKKAROTT HOUSE, PERINGALAM AMSOM, ANIYARAM DESOM, THALASSERY TALUK, KANNUR DISTRICT.

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(DIED, LEGAL HEIRS RECORDED)

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5 K.M. MUKUNDAN, S/o CHATHU, AGED 55 YEARS, NO OCCUPATION, CHERUVOLLIL HOUSE, PERINGATHUR AMSOM, PULLUKKARA DESOM, THALASSERY TALUK, KANNUR DISTRICT.

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6 K.M. KARUNAN, S/o CHATHU, AGE NOT KNOWN, RESIDING AT PERINGATHUR AMSOM, PULLUKKARA DESOM, THALASSSERY TALUK, KANNUR DISTRICT. (DIED, ADDL.R7 TO 10 IMPLEADED)

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ADDL.R7 KAMALA KOODATHIL, W/o LATE KARUNAN, AGED 58 YEARS, RESIDING AT CHERUVOL HOUSE, PEINGATHUR AMSOM, PULLUKKARA P.O , THALASSERY TALUK, KANNUR DISTRICT, PIN 670672

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ADDL.R8 K.M ANOOP, S/o LATE KARUNAN, AGED 36 YEARS, RESIDING AT CHERUVOL HOUSE, PEINGATHUR AMSOM, PULLUKKARA P.O, THALASSERY TALUK, KANNUR DISTRICT, PIN 670672

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ADDL.R9 K.M SUNEESH, S/o LATE KARUNAN, AGED 33 YEARS, RESIDING AT CHERUVOL HOUSE, PEINGATHUR AMSOM, PULLUKKARA P.O, THALASSERY TALUK, KANNUR DISTRICT, PIN 670672

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ADDL.R10 K.M HARSHA, D/o LATE KARUNAN, AGED 26 YEARS, RESIDING AT CHERUVOL HOUSE, PEINGATHUR AMSOM, PULLUKKARA P.O, THALASSERY TALUK, KANNUR DISTRICT, PIN 670672 (LEGAL REPRESENTATIVES OF DECEASED 6^th RESPONDENT ARE IMPLEADED AS ADDITIONAL RESPONDENTS 7 TO 10 VIDE ORDER DATED 27/11/2019 IN IA 3/2019).

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RFA No.440 of 2005

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(IT IS RECORDED THAT R4 DIED AND THAT R1, 2 AND 3 WHO ARE ALREADY IN PARTY ARRAY ARE THE LEGAL HEIRS OF DECEASED R4 LEAVING OPEN THE ISSUE AS TO WHETHER ALL OR ANY AMONG THEM IS AN HEIR OF THE DECEASED AS PER ORDER DATED 05.12.12 IN MEMO DATED 23/11/2012 VIDE CF No.6847/12)

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(IT IS RECORDED THAT THE FIRST RESPONDENT (SMT.V.K. GOURI AMMA) IS THE LEGAL REPRESENTATIVE OF DECEASED 4^th RESPONDENT (SRI.V.K.RAJEEVAN) VIDE ORDER DATED 24/09/2019 IN IA 4/2019)

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(IT IS RECORDED THAT THE 1^st RESPONDENT IN THE APPEAL (V.K.GOURI AMMA) EXPIRED AND RESPONDENTS 2 (V.K.RAJANI) AND 3 (V.K. AMBIKA VENUGOPAL) ARE THE LEGAL REPRESENTATIVES OF DECEASED FIRST RESPONDENT VIDE ORDER DATED 16/10/2020 IN IA 2/2020)

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BY ADVS. SRI.A.C.VENUGOPAL (R2) SRI.CIBI THOMAS (R5, R6, ADDL.R7 TO R10) SMT.VIDHYA. A.C (R1, R2 AND R4)

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THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON 25.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

RFA No.440 of 2005

JUDGMENT

In a suit for partition, a preliminary decree was

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granted in part with respect to item Nos.7 and 8. In so far as item Nos.1 to 6 are concerned, no decree was granted in

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favour of the plaintiffs for the reason that the owner of

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the property had left out Ext.B2 Will bequeathing the same to the daughter of first defendant, the 2^nd defendant. The

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deceased testator is a lady died issueless and unmarried. The plaintiffs came up in appeal aggrieved by the said decree in so far as it is against them.

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One witness, DW2, was examined to prove the due

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execution. But the contention raised by the plaintiffs is that the alleged Will did not contain the signature of the

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testator and what is affixed as that of her is only a worst

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form of imitation of the signature, which is well evident

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from her admitted signature. Earlier, the property was

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obtained by her under Ext.A1 compromise, wherein she is the 3^rd defendant and a signatory. A mere comparison under

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Section 73 of the Evidence Act cannot be taken as a

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RFA No.440 of 2005

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conclusive evidence, especially when the credibility of DW2

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is put under suspicion. Hence, it was submitted that the genuineness of the signature found affixed as that of the testator should be established by obtaining expert evidence. A comparison under Section 73 of the Evidence Act would also support the necessity to have an expert opinion under Section 45 of the Evidence Act, since it is too adventurous to arrive at a conclusion under that provision.

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Hence, a remand of the matter cannot be avoided. The decree and judgment of the trial court are hence set aside. The matter is remanded back to the trial court. The parties shall appear before the trial court on 10/02/2022. They are at liberty to adduce additional evidence. Both the parties are entitled to produce documents having admitted signatures for the purpose of expert opinion, besides Ext.A1 document.

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The appeal is allowed in part accordingly. No cost.

Sd/-

P.SOMARAJAN

JUDGE

DMR/-

K.T.Krishnakumari v. v.K.Gouri Amma

Case brief

What is this about?

What did the court decide?

K.T.Krishnakumari v. v.K.Gouri Amma

Case brief

What is this about?

What did the court decide?

What the court decided

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