Dismissed

Kochu Thressia v. Seema

Kerala HC6 Jun 2023RFA/665/2009

Case brief

AI extract

What is this about?

The High Court dismissed appeals and a civil revision petition contesting a will. Upholding the trial court, the judge found the registered will genuine based on witness evidence, noting the testator had mental capacity despite illness. The will's execution was proven, leading to the discharge of charges over the property.

What did the court decide?

Appeals and civil revision petition dismissed; charge upon property discharged.

Kochu Thressia Vs Seema — Succession and Inheritance | Kerala HC (2023)

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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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TUESDAY, THE 6^TH DAY OF JUNE 2023 / 16TH JYAISHTA, 1945

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RFA NO. 666 OF 2009

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AGAINST THE JUDGMENT AND DECREE DT.30.11.2004 IN OS 923/2000 OF PRINCIPAL SUB COURT, THRISSUR

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APPELLANTS:

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1 KOCHU THRESYA, AGED 69 YEARS, W/O ARIMBUR THORAYIL LONA(LATE), PADINHATTUMURI DIVISION, VADAKKUMMURI VILLAGE, THRISSUR TALUK 2 RAPPAYI, AGED 47 YEARS, S/O ARIMBUR THORAYIL LONA(LATE), PADINHATTUMURI DIVISION, VADAKKUMMURI VILLAGE, THRISSUR TALUK

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BY ADV SRI.JOSEPH SEBASTIAN PURAYIDAM

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RESPONDENTS:

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1 SEEMA, AGED 31 YEARS, D/O CHIRAMEL PAUL, CHETTUPUZHA DIVISION, PULLAZHI VILLAGE, THRISSUR TALUK.

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2 MERCY FRANCIS, D/O ARIMBUR THORAYIL LONA(LATE), PADINHATTUMURI DIVISION, VADAKKUMMURI VILLAGE, THRISSUR TALUK

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3 RAPPAYI AGED ABOUT 50 YEARS, S/O ARIMBOOR DEVASSI, VADAKKUMMURI P.O, PERINGOTTUKARA VILLAGE, THRISSUR TALUK 4 CHACKO AGED ABOUT 52 YEARS, S/O CHIRAYATH OUSEPH,CHEMMAPPILLY DIVISION, VADAKKUMMURI P.O., THRISSUR TALUK. BY ADVS. P.K.RAVI SANKAR SRI.B.V.BALAKRISHNAN

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THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON 06.06.2023, ALONG WITH CRP.864/2005, 665/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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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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TUESDAY, THE 6^TH DAY OF JUNE 2023 / 16TH JYAISHTA, 1945

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CRP NO. 864 OF 2005

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AGAINST THE JUDGMENT DT.30.11.2004 IN OP 10/2001 OF PRINCIPAL SUB COURT, THRISSUR

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REVISION PETITIONERS/RESPONDENTS 2 & ADDL. 4TH RESPONDENT:

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1 KOCHUTHRESSIA, W/O.ARIMBOOR THORAYIL LONA, PADINJATTUMURI DESOM, VADAKKUM MURI VILLAGE, THRISSUR TALUK.

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2 RAPPAI, S/O.ARIMBOOR THORAYIL LONA PADINJATTUMURI DESOM, VADAKKUM MURI VILLAGE, THRISSUR TALUK. BY ADV SRI.JOSEPH SEBASTIAN PURAYIDAM

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RESPONDENTS:

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1 SEEMA, D/O CHIRAMMEL PAUL, CHETTUPUZHA DESOM, PULLAZHI VILLAGE, THRISSUR TALUK, THRISSUR DISTRICT.

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2 MERCY FRANCIS D/O.ARIMBOOR THORAYIL LONA, PADINJATTUMMURI DESOM, VADAKKUM MURI VILLAGE, THRISSUR TALUK, THRISSUR DISTRICT.

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BY ADVS. RAVI SANKAR P K SRI.P.V.BALAKRISHNAN SRI.K.MATHEWS MATHAI

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THIS CIVIL REVISION PETITION HAVING COME UP FOR HEARING ON 06.06.2023, ALONG WITH RFA.666/2009 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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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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TUESDAY, THE 6^TH DAY OF JUNE 2023 / 16TH JYAISHTA, 1945

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RFA NO. 665 OF 2009

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AGAINST THE JUDGMENT AND DECREE DT. 30.11.2004 IN OS 775/2000 OF

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PRINCIPAL SUB COURT, THRISSUR

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APPELLANTS/PLAINTIFF NO.2 AND DEFENDANT NO.2:

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1 KOCHU THRESYA, AGED 69 YEARS, W/O ARIMBUR THORAYIL LONA(LATE), PADINHATTUMURI DIVISION, VADAKKUMMURI VILLAGE, THRISSUR TALUK

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2 RAPPAYI, AGED 47 YEARS, S/O ARIMBUR THORAYIL LONA(LATE), PADINHATTUMURI DIVISION, VADAKKUMMURI VILLAGE, THRISSUR TALUK

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BY ADV SRI.JOSEPH SEBASTIAN PURAYIDAM

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RESPONDENTS/DEFENDANT NOS.1 AND 3:

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1 SEEMA,

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AGED 31 YEARS, D/O CHIRAMEL PAUL, CHETTUPUZHA DIVISION, PULLAZHI VILLAGE, THRISSUR TALUK.

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2 MERCY FRANCIS, D/O ARIMBUR THORAYIL LONA(LATE), PADINHATTUMURI DIVISION, VADAKKUMMURI VILLAGE, THRISSUR TALUK

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BY ADVS. P.K.RAVISANKAR SRI.B.V.BALAKRISHNAN

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THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON 06.06.2023, ALONG WITH RFA.666/2009 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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SATHISH NINAN, J.

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= = = = = = = = = = = = = = = = = = R.F.A. Nos.665, 666 of 2009 & C.R.P No.864 of 2005

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= = = = = = = = = = = = = = = = = = Dated this the 6^th day of June, 2023

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J U D G M E N T

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RFA No.665/2009 arises from OS 775/2000 which is a

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suit for partition. RFA 666/2009 arises from OS

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923/2000. It is a suit for injunction against trespass.

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CRP 864/2005 is filed against OP 10/2001 which was filed

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for discharge of the charge over the property which is the subject matter in the suits above, in terms of Section 100 of the Transfer of Property Act.

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The property in dispute in the suits belonged to

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late Anto. The suit for partition is filed by his parents against his wife. For the sake of convenience, they are hereinafter referred to as, “the parents” and “the wife”. The suit for prohibitory injunction and the

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OP for discharge of charge over the property were filed by the wife against parents. The trial court dismissed the suit for partition and decreed the suit and counter

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R.F.A. Nos.665, 666 of 2009 & C.R.P No.864 of 2005

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claim. The original petition was also ordered in favour

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of the wife.

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Anto died on 15.09.1998. He was suffering from

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cancer. The claim for partition by the parents were denied by the wife relying on Ext.B1 Will dated 16.04.1998 executed by Anto. In terms of Ext.B1 Will, the property and the Bank deposits were bequeathed in favour of the wife-Seema. Certain amounts were reserved

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to be paid to few others including the parents of Anto. The parents disputed the genuineness of the Will.

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The trial court found that Ext.B1 Will is

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genuine and accordingly upheld the claim of the wife.

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Heard Sri.Joseph Sebastian Purayidom, learned

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counsel for the appellants and Sri.P.K.Ravisankar, learned counsel for the respondents.

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The main point for determination is with regard

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to the genuineness of Ext.B1 Will.

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R.F.A. Nos.665, 666 of 2009 & C.R.P No.864 of 2005

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-: 3 :-

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Ext.B1 is a registered Will. The Will contains

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two witnesses viz. one Devassi and Antony. They were examined as DWs.1 and 2 respectively. They have vouched

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to the due execution of the Will by Anto and its due attestation. In their cross-examination it was suggested to them that they have acquaintance with the wife and her family, which they frankly admitted. However, nothing could be brought out in their cross-examination to discredit them. The wife was examined as DW3. No suspicious circumstance could be brought out in the cross examination. The scribe of the Will was examined as DW4. His evidence also corroborates the evidence of DWs.1 to 3.

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The main contention of the learned counsel for

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the appellants is that, Ext.B1 Will is a forged one and that the signatures seen therein are not that of late Anto. Drawing my attention to the signatures seen at various pages of the Will, the learned counsel would

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R.F.A. Nos.665, 666 of 2009 & C.R.P No.864 of 2005

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-: 4 :-

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argue that the signatures differ and therefore, it has

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to be held that it was not executed by Anto. It is true that the signatures in all pages of Ext.B1 Will are not identical and that it varies. It is to be borne in mind that Anto was suffering from cancer and died five months after the execution of the Will. If there has been an attempt to forge the signature, perfection would normally be attempted. In the cross-examination of defendants witnesses there is no specific suggestion that the signatures seen in Ext.B1 are not that of Anto

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though there is a general challenge about the genuineness of the Will. The Will contains the thumb impression of Anto. No attempt was made by the appellants to have the signature and thumb impression compared with admitted documents if any. Before this Court, learned counsel for the appellants would raise a fervent plea that the suit may be remanded to the trial court to have such a comparison made. At this distance

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R.F.A. Nos.665, 666 of 2009 & C.R.P No.864 of 2005

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-: 5 :-

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of time, I do not think that such a course is called

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for. Apart from the elapse of time, such evidence is

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only in the nature of opinion evidence. The evidence of

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DWs.1,2 and 4 referred to supra, are found sufficient enough to find the genuineness of Ext.B1 Will.

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Learned counsel for the appellant would argue

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that DW1 would claim that he had been to the house at about 10.15 and that the Will was signed at about 10.30, whereas DW2 would depose that he had signed the Will at 10.00 am. The disparities in the time would tell upon the reliability of the witnesses, it is contended. It is to be noticed that there is hardly any difference in the version of the witnesses with regard to the time of execution. At such distance of time after the execution of the Will, the witnesses have spoken about the approximate time. It is only to be understood that according to the witnesses the execution was in the morning at around 10 am. The 15-30 minutes difference if

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R.F.A. Nos.665, 666 of 2009 & C.R.P No.864 of 2005

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-: 6 :-

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at all, is insignificant.

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In the cross-examination of PW1, it is admitted

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that Anto had the capacity to execute the Will. Therefore, though Anto was suffering from Cancer he had

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the capacity to execute the Will. No evidence is forthcoming to find that Anto did not have the mental capacity to execute the Will.

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It is also to be noticed that, the Will is challenged on grounds of fraud, undue influence and forgery. With regard to the ground of fraud, no details are pleaded or brought out in evidence. The very plea of undue influence would militate against the contention of forgery. There is total lack of evidence to prove the plea of undue influence.

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Be that as it may, as noticed earlier, through

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the evidence of Dws.1 to 4, the due execution of Ext.B1 Will has been proved. The trial court has rightly appreciated the evidence on record while holding so.

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R.F.A. Nos.665, 666 of 2009 & C.R.P No.864 of 2005

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-: 7 :-

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Even after the death of Anto, his wife-Seema

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continued in possession and enjoyment of the property. Ext.B8 series are the Building Tax receipts. Though PW1

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claimed that amounts were advanced to Anto for the purchase of plaint schedule properties and for construction of house therein, there is no evidence in the said regard. The trial court found that PWs.2 and 3 are not trustworthy witnesses. PW2 is working as a salesman in the business of Anto's brother-Rappai. Though PW3 claimed that he was overseeing the construction of the house, he was unable to say anything regarding the period during which the construction was done. As noticed by the trial court, the evidence of PWs.2 and 3 does not inspire confidence.

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Anto died on 15.09.1998. His wife Seema

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continued to reside in the property. She had paid building tax as evidenced by Exts.B8 series. Her possession and enjoyment of the property is not liable

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R.F.A. Nos.665, 666 of 2009 & C.R.P No.864 of 2005

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-: 8 :-

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to be disturbed.

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Having found that Ext.B1 Will is genuine, the

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charge over the property is liable to be discharged. The

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trial court was right in granting appropriate directions in the said regard.

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The trial court has rightly appreciated the entire evidence on record. The conclusions are based on evidence. No interference is called for.

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Resultantly, the appeals and the civil revision petition are dismissed.

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Sd/- SATHISH NINAN JUDGE

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//True Copy//

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P.S. to Judge

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kns/-

Kochu Thressia v. Seema

Case brief

What is this about?

What did the court decide?

Kochu Thressia v. Seema

Case brief

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