Rani Thomas vs Annie Thomas

Type Court Judgment Court Kerala Decided Jun 30, 2023

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https://sooperkanoon.com/case/1383578

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Citation: sooperkanoon.com/1383578
Court: Kerala High Court
Judge: Honourable Mr. Justice P.Somarajan
Decided On: Jun 30, 2023
Case Number: OP(C)/1676/2022

Parties & Advocates

Appellant / Petitioner

Rani Thomas

Respondent

Annie Thomas

Excerpt

.....its due execution. the denial of right to adduce evidence or to obtain expert opinion hence is so fatal to the case advanced by the defendants . the trial court has utterly failed in exercising the jurisdiction in its correct perspective. in fact, it has resulted in failure of equity principles as well as the administration of justice. as such, it is liable to be set aside. i do so, by allowing the application submitted by the defendants 2 and 3 for sending the disputed will for expert opinion. the steps shall be taken in the trial court in that behalf within two weeks from the next posting date. the original petition will stand allowed accordingly. sd/- p.somarajan judge msp appendix of op(c) 1676/2022 petitioner exhibits exhibit p1 the true photostat copy of the plaint in o.s.no.258 of 2020, on the files of iiird exhibit p2 the true photostat copy of the written statement filed by the defendants in exhibit p3 the true photostat copy of the i.a.no.4 of 2022 in o.s.no.258 of 2020 on the files of iiird additional sub court, ernakulam exhibit p4 the true photostat copy of the counter affidavit filed in i.a.no.4 of 2022 in exhibit p5 the true photostat copy of the i.a.no.5 of 2022 in exhibit p1 suit exhibit p6 the true photostat copy of the counter affidavit filed in exhibit p5 petitionexhibit p7 the true photostat copy of the common orderdated 17-08-2022 passed by the iiird additional sub court, ernakulam in exhibits p3 and p5 applications respondent exhibits exhibit r1(a) true photograph dated 12.9.2022 showing the state of affairs of the plaint schedule property exhibit r1(b) true copy of the representation dated 16.9.2022 of the 1st respondent submitted to the secretary, maradu municipality with receipt inward no. 9783 dated 16.9.2022 issued by the maradu municipality exhibit r1(c) true copy of the letter no. e2-9783/2022 dated 9.11.2022 issued by the secretary, exhibit r1(d) true copy of the application dated 1.12.2022 submitted by the 1st.....

Full Judgment

IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE P.SOMARAJAN FRIDAY, THE 30TH DAY OF JUNE 2023 / 9TH ASHADHA, 1945 AGAINST THE ORDER/JUDGMENT IN OS 258/2020 OF III ADDITIONAL SUB COURT, ERNAKULAM PETITIONERS/PETITIONERS/283/DEFENDANT 263: 1 RANI THOMAS, AGED 57, D/O.LATE E.J.THOMAS, ELANJIMATTATHU HOUSE, MARADU VILLAGE, MARADU MUNCIPALITY, KANAYANNUR TALUK, 2 GINI THOMAS, AGED 54, D/O.LATE E.J.THOMAS, ELANJIMATTATHU HOUSE, MARADU BY ADVS. AJITH VISWANATHAN SHIBU JOSEPH SAYED MANSOOR BAFAKHY THANGAL JEFFIN JOHN M.SRIRAM C.B.GAUTHAM BALRAM S.A. RESPONDENTS/RESPONDENT/1ST PETITIONER:
1 ANNIE THOMAS, AGED 59, D/O.LATE E.J.THOMAS, W/O.K.I.THOMAS, KURISINKAL HOUSE, MARADU VILLAGE, MARADU MUNCIPALITY, KANAYANNUR TALUK, 2 JOSEPH PETER, AGED 56 YEARS S/O.LATE E.J.THOMAS, ELANJIMATTATHU HOUSE, MARADU BY ADVS. Dr V N Sankarjee V.N.MADHUSUDANAN R.UDAYA JYOTHI M.M.VINOD M.SUSEELA KEERTHI B. CHANDRAN VIJAYAN PILLAI P.K. C.PURUSHOTHAMAN NAIR NITHEESH.M SUKANYA S. KRIPA KRISHNA THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 30.06.2023,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

JUDGMENT

Ext.P3 is under challenge. It is an order passed by the trial court in a suit for partition, on an application submitted by the defendants 2 and 3 to send the disputed registered Will for expert opinion. It was rejected by the trial court without knowing the mandate and the liability imposed on the propounder to prove the Will. The Will has to be proved in accordance with the mandate under Section 63 of the Indian Succession Act, 1925. Clauses (b) and (c) of Section 63 are extracted below for reference:

“63. Execution of unprivileged Wills. -Every testator, not being a soldier employed in an expedition or engaged in actual warfare,12 [or an airman so employed or engaged,] or a mariner at sea, shall execute his Will according to the following rules:-

(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will.

witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.”

It has to be proved in compliance with the requirement under Section 68 of the evidence Act. Necessarily, it is the duty of the propounder to show and establish its due execution. The denial of right to adduce evidence or to obtain expert opinion hence is so fatal to the case advanced by the defendants . The trial court has utterly failed in exercising the jurisdiction in its correct perspective. In fact, it has resulted in failure of equity principles as well as the administration of justice. As such, it is liable to be set aside. I do so, by allowing the application submitted by the defendants 2 and 3 for sending the disputed Will for expert opinion. The steps shall be taken in the trial court in that behalf within two weeks from the next posting date. The original petition will stand allowed accordingly. Sd/- P.SOMARAJAN JUDGE msp APPENDIX OF OP(C) 1676/2022 PETITIONER EXHIBITS EXHIBIT P1 THE TRUE PHOTOSTAT COPY OF THE PLAINT IN O.S.NO.258 OF 2020, ON THE FILES OF IIIRD EXHIBIT P2 THE TRUE PHOTOSTAT COPY OF THE WRITTEN STATEMENT FILED BY THE DEFENDANTS IN EXHIBIT P3 THE TRUE PHOTOSTAT COPY OF THE I.A.NO.4 OF 2022 IN O.S.NO.258 OF 2020 ON THE FILES OF IIIRD ADDITIONAL SUB COURT, ERNAKULAM EXHIBIT P4 THE TRUE PHOTOSTAT COPY OF THE COUNTER AFFIDAVIT FILED IN I.A.NO.4 OF 2022 IN EXHIBIT P5 THE TRUE PHOTOSTAT COPY OF THE I.A.NO.5 OF 2022 IN EXHIBIT P1 SUIT EXHIBIT P6 THE TRUE PHOTOSTAT COPY OF THE COUNTER AFFIDAVIT FILED IN EXHIBIT P5 PETITION

EXHIBIT P7 THE TRUE PHOTOSTAT COPY OF THE COMMON ORDER

DATED 17-08-2022 PASSED BY THE IIIRD ADDITIONAL SUB COURT, ERNAKULAM IN EXHIBITS P3 AND P5 APPLICATIONS RESPONDENT EXHIBITS EXHIBIT R1(A) TRUE PHOTOGRAPH DATED 12.9.2022 SHOWING THE STATE OF AFFAIRS OF THE PLAINT SCHEDULE PROPERTY EXHIBIT R1(B) TRUE COPY OF THE REPRESENTATION DATED 16.9.2022 OF THE 1ST RESPONDENT SUBMITTED TO THE SECRETARY, MARADU MUNICIPALITY WITH RECEIPT INWARD NO. 9783 DATED 16.9.2022 ISSUED BY THE MARADU MUNICIPALITY EXHIBIT R1(C) TRUE COPY OF THE LETTER NO. E2-9783/2022 DATED 9.11.2022 ISSUED BY THE SECRETARY, EXHIBIT R1(D) TRUE COPY OF THE APPLICATION DATED 1.12.2022 SUBMITTED BY THE 1ST RESPONDENT BEFORE THE EXHIBIT R1(E) TRUE COPY OF THE LETTER NO. E2-9283/2022 DATED 6.12.2022 ISSUED BY THE SECRETARY,

Same Court & Year Kerala · 2023 Same Parties Rani Thomas vs Annie Thomas Same Judge Honourable Mr. Justice P.Somarajan