Dismissed

Premkumar Perumal v. Valsala Balan

Kerala HC26 May 2022RFA/63/2014

Case brief

AI extract

What is this about?

This is an appeal against a preliminary decree for partition. The appellate court dismissed the appeal, holding that the trial court correctly rejected the validity of an unregistered Will and Codicil due to glaring inconsistencies in the evidence and lack of proof regarding their execution and possession.

What did the court decide?

Both appeals dismissed; preliminary decree for partition affirmed; no costs awarded.

Premkumar Perumal Vs Valsala Balan — 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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THURSDAY, THE 26^TH DAY OF MAY 2022 / 5TH JYAISHTA, 1944

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RFA NO. 63 OF 2014

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AGAINST THE JUDGMENT AND DECREE DATED 28-02-2013 IN OS 383/2004 OF I ADDITIONAL SUB COURT, KOZHIKODE.

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APPELLANT/1ST DEFENDANT :

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PREMKUMAR PERUMAL, AGED 56 YEARS,

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S/O.P.K.PERUMAL,JESTHERAM BAG D2, FLAT NO 10, 164 D, AMBEDKAR ROAD MUMBAI 14.

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BY ADVS. SRI.K.M.FIROZ SRI.S.KANNAN SMT.M.SHAJNA

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RESPONDENTS/PLAINTIFFS & 2ND DEFENDANT :

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1 VALSALA BALAN, AGED 65 YEARS, D/O.P.K.PERUMAL AYILOT PADAM VALAPPIL HOUSE, POKKUNNU P.O., VALAYANAD AMSOM DESOM, KOZHIKODE TALUK-673 576.

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2 LALITHA SREERAM, AGED 66 YEARS, D/O.P.K.PERUMAL,14/150 NEW EXTENSION ROAD, MADIKKERI 571 201 KARNATAKA.

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3 SAROJA NAGARAJAN,AGED 67 YEARS, D/O. P.K PERUMAL,SRI RADHAKRISHNA TIMBER DEPOT, RAILWAY FEEDER ROAD, PALANI TAMIL NADU- 600 050.

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R1 TO R3 BY ADVS. SRI.T.SETHUMADHAVAN (SR.) SRI.P.S.APPU SRI.T.C.SURESH MENON

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THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 26.05.2022, ALONG WITH RFA.219/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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RFA Nos.63 & 219 of 2014 2

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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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THURSDAY, THE 26^TH DAY OF MAY 2022 / 5TH JYAISHTA, 1944

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RFA NO. 219 OF 2014

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AS 120/2013 OF DISTRICT COURT, KOZHIKODE. AGAINST THE JUDGMENT AND DECREE OS 50/2006 DATED 28-02-2013 OF I ADDITIONAL SUB COURT, KOZHIKODE.

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APPELLANT/PLAINTIFF :

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PREMKUMAR PERUMAL, AGED 54 YEARS, S/O P.K PERUMAL, “PREM NIVAS”, BEHIND OF NEW VEGETABLE MARKET, P.O CHALAPPURAM, KOZHIKODE-2.

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BY ADVS.

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SRI.K.M.FIROZ SRI.S.KANNAN SMT.NEENU.P.KUMAR SMT.M.SHAJNA

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RESPONDENTS/DEFENDANTSS :

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1 VALSALA BALAN,AGED 57 YEARS, D/O P.K PERUMAL, AKKILUTTAPAM HOUSE, POKKUNNU P.O, ERINGALLUR AMSOM DESOM, KOZHIKODE TALUK , PIN 673013, KERALA STATE.

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2 LALITHA SREERAM, AGED 60 YEARS, D/O P.K PERUMAL, 14/150 NEW EXTENSION ROAD, MADIKKERI 571201 , KARNATAKA STATE.

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BY ADVS. SRI.T.C.SURESH MENON SRI.P.S.APPU

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THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 26.05.2022, ALONG WITH RFA.63/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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RFA Nos.63 & 219 of 2014 3

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P.SOMARAJAN, J.

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------------------------------------------------

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RFA Nos.63 & 219 of 2014

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----------------------------------------------------

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Dated this the 26^th day of May, 2022.

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J U D G M E N T

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In a suit for partition, a decree was passed granting preliminary decree for partition, against which the appellant/first defendant came up claiming that there is failure on the part of the trial court to consider

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and appreciate Ext.A1 unregistered Will and Ext.A2 Codicil left out by the deceased father in his favour. It is submitted that he is the sole legatee under the Will

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and the Codicil with respect to the property left out by the father.

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In order to prove the due execution of the Codicil as well as the Will, the respective attesting witnesses were examined. PW3 and PW4 are the two witnesses to Ext.A1 Will. The propounder, the sole legatee was examined as PW1. He claims that the Will

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RFA Nos.63 & 219 of 2014 4

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was prepared and executed by the testator in the presence of his children, i.e., four daughters, one son and his sister. But an inconsistent version was given by PW3, the first attesting witness that at the time of execution of the Will, one daughter and the two witnesses alone were present. The other attesting witness PW4 had given an entirely different version that the legatee was also present at the time of execution of the Will, besides the wife of the deceased and his sister. In fact, there is no consistent case with respect to the persons, who were present at the time of execution of the alleged Will. It is not stated anywhere in Ext.A1 Will, as to who had actually prepared the Will and in whose hand writing it was prepared. The name of scribe was not disclosed in Ext.A1 Will. Both the attesting witnesses pleaded ignorance with respect to the person, who had prepared the Will and in whose hand writing it was

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RFA Nos.63 & 219 of 2014 5

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prepared. The inconsistency writ large on its face was really taken up in detail by the trial court so as to reject the claim based on Ext.A1 Will and Ext.A2 Codicil. Yet another aspect was also brought to the notice of this Court with respect to the Codicil, wherein the thumb impression of the testator alone was affixed. It is a type written one and executed just seven days before the death of the testator. In fact, the suspicious circumstance attached to the execution of Ext.A2 Codicil and Ext.A1 Will was not cleared out by the propounder. On the other hand, an entirely inconsistent version was adduced through PW1 propounder, PW3 attesting witness and PW4, the other attesting witness. A mere perusal of oral evidence tendered by PW4 would show that he has got close acquaintance with the sole legatee under the Will, the defendant. PW3 is his father-in-law. Both were maintaining a relationship with the sole legatee under the Will rather than the

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RFA Nos.63 & 219 of 2014 6

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testator. It is strange enough that no case was advanced with respect to how the sole legatee under the Will came into possession of the unregistered Will though it was executed ten years before the death of the testator. No pleading was raised in the plaint with respect to its possession, or who had actually in possession of and at what time it was given to him. Nothing was mentioned in the plaint with respect to the possession of Ext.A1 Will or Ext.A2 Codicil, though both are unregistered documents. No probable or acceptable case was either pleaded or let in evidence and even no case was advanced in that behalf. As such, I could not find any reason to interfere with the finding of the trial court regarding the failure to prove the due execution of Ext.A1 Will and Ext.A2 Codicil.

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There is no much dispute with respect to the relationship between the parties to the suit. They are the siblings and are equally entitled to get the property

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RFA Nos.63 & 219 of 2014 7

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left out by their father in the absence of a valid and genuine testament. Hence, the preliminary decree for partition granted by the trial court deserves no interference. Both the appeals are hence dismissed. No costs.

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Sd/- P. SOMARAJAN, JUDGE

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amk

Premkumar Perumal v. Valsala Balan

Case brief

What is this about?

What did the court decide?

Premkumar Perumal v. Valsala Balan

Case brief

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