Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI MONDAY, THE 31ST DAY OF DECEMBER 2012 10TH POUSHA 193 RFA.No. 860 of 2008 ( ) ----------------------- (AGAINST JUDGMENT IN OS.993/2007 DATED 05 07/08 ON THE FILE OF THE PRL.SUB COURT,THRISSUR) APPELLANT(S):/PLAINTIFFS ------------ 1. CHANDRIKA, AGED 66 D/O. LATE JANAKYAMMA, KADANGODE, HOUSE P.O. POONKUNNAM, POONKUNNAM VILLAGE DESOM THRISSUR TALUK.
2. SAROJINI , D/O. LATE JANAKYAMMA, KADANGODE HOUSE, P.O. POONKUNNAM POONKUNNAM VILLAGE DESOM, THRISSUR TALUK.
3. SREEDEVI, D/O. KADANGOD VEETIL CHANDRIKA, KADANGODE HOUSE, P.O. POONKUNNAM, POONKUNNAM VILLAGE DESOM, THRISSUR TALUK.
4. RAJALAKSMI, D/O. KADANGOD VEETIL SAROJINI, KADANGODE HOUSE, P.O. POONKUNNAM POONKUNNAM VILLAGE DESOM, THRISSUR TALUK. BY ADV. SRI.G.SREEKUMAR (CHELUR) RESPONDENT(S):/DEFENDANT -------------- SANKARANARAYANAN, AGED 5 YEARS, S/O.KADANGOD VEETIL (AYILYAM) JANAKYAMMA, P.O.POONKUNNAM, KOLATHAPPILLY LANE, POONKUNNAM VILLAGE DESOM, THRISSUR TALUK. BY ADV. SRI.K.PADMANABHAN BY ADV. SRI.A.D.RAVINDRA PRASAD THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 31-12-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOTTATHIL B.RADHAKRISHNAN & A.V.RAMAKRISHNA PILLAI, JJ.
.................................................................... &.................................................................... I.A.No.846R.F.A. No.860 of 2008 of 2012 in R.F.A. No.860 of 2008 Dated this the 31st day of December, 2012. JUDGMENT
Thottathil B.Radhakrishnan, J.
Janaky Amma died on 21/09/1994 leaving behind her daughters, plaintiffs 1 & 2, and her son, the defendant. Plaintiffs 3 & 4 are Janaky Amma's granddaughters through plaintiffs 1 & 2.
2. Some time in 1956, Janaky Amma got release of all other rights over the properties as per release deed No.2859/56. It appears that certificate of purchase was issued in a proceeding before the Land Tribunal. It is the admitted case that on 08/05/1985, Janaky Amma executed five settlement deeds, parting 75 cents equally to her son, her daughters and her granddaughters. After her death on 21/09/1994, the aforenoted females continued to live in the RFA 860/08 -2- building in 9.5 cents that belonged to Janaky Amma. Later in 2007, they sued for partition and allotment of shares by metes and bounds in accordance with the disposition made by Janaky Amma as per Ext.A8 registered Will shown to have been executed on 14/05/1985. The plea of the defendant was that Ext.A8 is a product of impersonation and such a document was never executed and plaintiffs 3 & 4, who are the granddaughters of Janaky Amma, are not entitled to any share in the said item of property. He claims that he is entitled to 1/3rd share, and the rest 2/3rd going to his two sisters.
3. At trial, a question for consideration was as to whether the propounder of Ext.A8 Will was proved as a testament and whether the disposition made thereby would entitle the plaintiffs to claim shares as they had done. One of the witnesses to Ext.A8 was examined. Sub Registrar was also examined. The first plaintiff gave evidence. Some independent witnesses were also examined on the side of the RFA 860/08 -3- plaintiffs. The defendant tendered evidence as DW1.
4. The court below, going by the judgment, appears to have proceeded by the possible probabilities and improbabilities; going by the dates of the documents and the identity of the persons, who are scribes for the respective documents. The five settlement deeds were on 08/05/1985. The scribe of those documents is not the scribe of Ext.A8. The court below, therefore, assumed that it would be improbable that Ext.A5 was drawn up and executed. Remember, Ext.A8 Will is allegedly executed on 14/05/1985. It is not necessary that the same scribe should have written it down. On record, it is also the evidence of PW3, who said that he and Smt.Vilasini and others were scribes attached to the same office of Document Writers. Obviously, no reference of the Will dated 14/05/1985 could have been made in documents, which were executed on 08/05/1985, though the chance of making a mention of such a proposal need not be or cannot be RFA 860/08 -4- ruled out. But, in our view, it does not appear to be clinging. We say so because when Janaky Amma got release of the properties in 1956, and thereafter, held the entire properties by herself, she made Exts.A4 to A7 and another settlement as if she was settling her properties in favour of all persons, who could have treated as members of her family on the date of coming into force of the Kerala Joint Hindu Family System (Abolition) Act, 1975. In that premise, we cannot outright reject the probability of Janamy Amma having thought of keeping her daughters and grand daughters with provision for appropriate accommodation while dealing with the 9.5 cents of land and building. With these, and other attendant circumstances, we are not prepared to outright reject the plaintiffs' contention regarding the back-drop of Ext.A8 Will.
5. Insofar as the testamentary capacity and other attendant circumstances are concerned, we would recall that execution of five settlement deeds by Janaky Amma on RFA 860/08 -5- 08/05/1985 is not disputed by the defendant. Those settlements are also made by Janaky Amma by giving properties to both the granddaughters at share at par with what is being granted to a daughter or a son.
6. With the aforesaid, we are of the view that the court below needs to provide a further opportunity for parties to bring on record any further evidence. This is particularly so because the person, who came to the court as the Sub Registrar, had nothing to say in relation to the registration of the document in question. May be, he was just the custodian and could not speak of the acts in connection with the registration of Ext.A8.
7. Having decided to make an order of remit, we see I.A.No.846 of 2012 wherein the plaintiffs (the females) have sought for permission to construct a residential house in the property in question. The defendant has filed a counter RFA 860/08 -6- affidavit. The fact of the matter remains that there was a building and this Court had granted permission to carry out repairs and renovation. Human beings need shelter. Here, those who need shelter are females. It is stated that many portions of the old and dilapidated building fell down and the plaintiffs have a permit from the local authorities concerned to build. Under such circumstances, in our view, the balance of convenience tilts heavily in favour of the appealing plaintiffs for permission to construct a residential house in the plaint schedule property without claiming any additional benefit or claims on the basis of such construction. This shall be strictly in accordance with any approved plan as may be granted by the local authority concerned. A certified copy of the plan also shall be produced before the court below. I.A.No.846 of 2012 will stand allowed in these terms. In the result, the impugned decree and the judgment are set aside, and the suit is remitted to the court below for trial RFA 860/08 -7- and disposal by permitting parties to adduce further evidence. For such purpose, the parties are directed to mark appearance before the court below on 22/01/2013. This R.F.A. is ordered accordingly. (THOTTATHIL B.RADHAKRISHNAN, JUDGE) (A.V.RAMAKRISHNA PILLAI, JUDGE) jg