N.C.Kaladharan vs Kamaleswaran Chellappan

MONDAY, THE 29TH DAY OF SEPTEMBER 2025 / 7TH ASWINA, 1947

RFA NO. 177 OF 2018

AGAINST THE JUDGMENT DATED 28.02.2018 IN OS NO.1285 OF 1994 OF

PRINCIPAL SUB COURT, THIRUVANANTHAPURAM

APPELLANT/5TH DEFENDANT:

N.C.KALADHARAN S/O.N.CHELLAPPAN, JAGATHY HOUSE, VELI ROAD, BEACH, THIRUVANANTHAPURAM-695007.

BY ADVS. SRI.S.SREEKUMAR (SR.) SRI.P.MARTIN JOSE SRI.P.PRIJITH SRI.THOMAS P.KURUVILLA SRI.R.GITHESH SHRI.AJAY BEN JOSE SRI.MANJUNATH MENON SHRI.SACHIN JACOB AMBAT SMT.ANNA LINDA EDEN SHRI.HARIKRISHNAN S.

RESPONDENTS/PLAINTIFFS & DEFENDANTS 1 TO 4:

1 KAMALESWARAN CHELLAPPAN AGED 76 YEARS S/O.CHELLAPPAN, T.C.16/849, JAGATHY, THIRUVANANTHAPURAM-695014, PRESENTLY RESIDING AT 708, MADISON AVENUE, PROSPECT PARK P.A. USA-19076. 2025:KER:72736

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2 C.KAMALASANAN S/O.N.CHELLAPPAN, RESIDING AT T.C.15/500, JAGATHY, KOCHAR ROAD, THIRUVANANTHAPURAM-695014.

3 DR. C.KAMADEVAN [DIED] S/O.LATE N.CHELLAPPAN, N.C.HOSPITAL, THIRUVANANTHAPURAM-695014.

4 G.P.MANGALAM W/O.DR.CHANDRA GUPTAN (USA), T.C.24/1899, MINCHIN ROAD, JAGATHY, THIRUVANANTHAPURAM-695014.

5 G.P.MAHESWARI W/O.DR.M.N.SOMAN, RTD. SURGEON, NORTH OF ALWAYE BRIDGE, ALWAYE-683101, KERALA.

ADDL.R6 DR.RADHARANI W/O.DR.C.KAMADEVAN, N.C.HOSPITAL, THIRUVANANTHAPURAM - 695 014.

ADDL.R7 K.NARAYANAN S/O.DR.C.KAMADEVAN, N.C.HOSPITAL, THIRUVANANTHAPURAM - 695 014

ADDL.R8 K.LAKSHMI, S/O.DR.C.KAMADEVAN, N.C.HOSPITAL, THIRUVANANTHAPURAM - 695 014

[LEGAL HEIRS OF THE DECEASED 3RD RESPONDENT ARE IMPLEADED IN THE PARTY ARRAY AS ADDITIONAL RESPONDENTS 6 TO 8 VIDE ORDER DATED 14/6/19 IN NO.2/19] 2025:KER:72736

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ADDL.R9 M/S.PEAGREEN PROJECTS AND DEVELOPERS LLP HAVING ITS REGISTERED OFFICE AT 34/1806 D, KURICKAL ARCADE, 3RD FLOOR, EDAPPALLY P.O., NH-47, ERNAKULAM 682024 REPRESENTED BY ITS DESIGNATED PARTNER M.K.J.PAUL.

[ADDL.9TH RESPONDENT IS IMPLEADED VIDE ORDER DATED 29/09/2025 IN NO.2/2018 (I.A.NO.868/2018) IN RFA 177/2018]

BY ADVS. R1 SRI.P.A.AHAMMED SRI.THOUFEEK AHAMED R2 SMT.SUMATHY DANDAPANI (SR.) SRI.MILLU DANDAPANI R3 & ADDL.R6 TO R8 SRI.M.SREEKUMAR R4 & R5/CAVEATOR SRI. V. AJAYAKUMAR SRI. SIDHARTH A. MENON R9 SRI.JOSEPH KODIANTHARA (SR.) SHRI.ABRAHAM JOSEPH MARKOS SRI.ISAAC THOMAS SMT.RACHEL ABRAHAM SRI.HARAN THOMAS GEORGE SRI.P.G.CHANDAPILLAI ABRAHAM SRI.V.ABRAHAM MARKOS

THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 11.09.2025, THE COURT ON 29.09.2025 DELIVERED THE FOLLOWING: 2025:KER:72736

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(CR)

JUDGMENT

1. The Appellant is the Defendant No.5 in the suit. The

Respondent No.1 is the Original Plaintiff, the Respondent No.2

is the Defendant No.1, who was later transposed as the

Additional Plaintiff No.2. The Respondents 3 to 5 are the

Defendant Nos.2 to 4.

2. During the pendency of this Appeal, the Respondent No.3 died

and his legal heirs were impleaded as Additional Respondent

Nos.6, 7 & 8.

3. The original Plaintiff filed the suit for partition of plaint A, B & C

schedule properties on the allegation that the said properties

belonged to the mother of the Plaintiff and the Defendants, Smt.

Gouri Ponnamma, who died on 01.11.1994.

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4. Plaint A schedule property contains two items of immovable

properties. Item No.1 is 35½ cents of land in Sy.No.952/2 & 953

of Vanchiyoor village in Thiruvananthapuram Taluk. Item No.2

property is 9 Acres and 6½ cents of land in Sy.No.2913 of

Alamcode village in Chirayinkeezhu Taluk. Plaint B schedule

property is the deposit in the name of Gouri Ponnamma in Fixed

Deposit, Savings Bank and Current Account & accrued interest

with Syndicate Bank Main and Fort or any other branches or in

any such other banks. Plaint C schedule property is all Deposits

and Fixed Deposits, Assets of stock in trade of N.C. & Company,

Thiruvananthapuram.

5. The suit was filed on 15.11.1994. The material averments in the

suit are that the Plaintiff and the Defendants are the children of

a Govt. Contractor, late Narayanan Chellappan, and late Gouri

Ponnamma. They died on 30.04.1977 and 01.11.1994

respectively. Plaint Schedule Item No.1 property was originally 2025:KER:72736

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the joint property of the father and the mother, and other items

of properties belonged to the father. On the basis of Ext.B19 Will

dated 10.08.1976, the entire Plaint Schedule Properties were

bequeathed in the name of Gouri Ponnamma. The District

Court, Thiruvananthapuram, granted Letters of Administration

with respect to the said Will in favour of Gouri Ponnamma as

per the Decree in O.S.No.9/1977. The Plaintiff and the

Defendant No.1, with the father, executed major contracts of

hydroelectric projects at Idukki and Kuttiyadi for the K.S.E.B.

Since there arose disputes with respect to the said works,

O.S.No.25/1974 and O.P.(Arb.)No.26/1971 were instituted

before the Sub Court, Thiruvananthapuram, and O.S.No.1/1975

was instituted before the Compensation Tribunal,

Thiruvananthapuram, and the said suits were pending when the

father expired. The said suits were decreed, and the mother

received several lakhs of rupees from the court and it is 2025:KER:72736

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understood that the mother has made plaint B schedule

deposits. Father was the managing partner of the firm, 'N.C. &

Company'. After the demise of the father, the mother and

Defendant No.5 were continuing the business. N.C. & Company

had major contracts in the Thiruvananthapuram airport.

Defendant No.5 was carrying on the business along with the

mother. The firm had huge assets by way of deposits and heavy

equipment. The assets of the firm are described in Plaint C

schedule. The mother died intestate and has not alienated any

of the properties owned by her and obtained from the father as

per Ext.B19 Will. The Plaintiff and the Defendants are Hindu

Ezhavas, and they are governed by the Hindu Succession Act

in the matter of succession. The Plaint Schedule Properties are

liable to be partitioned among the Plaintiff and the Defendants

and the Plaintiff is entitled to get 1/6 share out of the same.

6. All the Defendants filed separate Written Statements in the suit.

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7. The first Written Statement was filed by the Defendant No.5 on

09.11.1995, who alone opposed the suit prayers. He contended,

inter alia, that the mother had executed Ext.X5/B1 Will dated

30.10.1982 bequeathing all her properties and assets, including

her bank deposits and other amounts due to her as per court

decrees, to him absolutely. The said Will was deposited as a

closed Will in the Office of the District Registrar,

Thiruvananthapuram. After the death of the mother, the Will was

opened on 21.11.1994 on his Application, and the same was

registered as Deed No.203/1994. Ext.X5 Will come into effect

on the date of death of the mother on 01.11.1994. Defendant

No.5 has effected mutation of the immovable properties

mentioned in the said Will in his name and also paid land

revenue tax for the same. The bank deposits in the name of the

mother with Syndicate Bank, Local, Thiruvananthapuram, have

also been transferred in his name. The Plaint Schedule 2025:KER:72736

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properties absolutely belong to the Defendant No.5 in full

ownership, and they are not partible as claimed in the Plaint.

The Defendant No.5 was the youngest son of the parents, and

he has been living with them at Jagathy House,

Shanghumugham, Thiruvananthapuram. The parents died of

heart attack that occurred on account of the stress and strain of

the litigations initiated against them by the Plaintiff. The

Defendant No.5 looked after the parents in their old age, living

with them till their death. The parents had already given

substantial properties and assets to the Plaintiff and the

Defendants 1 to 4 within Thiruvananthapuram city worth several

crores of rupees. Huge amounts were given to the Plaintiff and

Defendant No.1 for starting their independent business in

contracts and to Defendant No.2 for starting N.C. Hospital. Very

valuable gold ornaments and money were given to the

Defendant Nos. 3 & 4 at the time of their marriage by the 2025:KER:72736

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parents. The residential property at Shanghumugham, given to

Defendant No.5, was already burdened with heavy liabilities due

from the father to Syndicate Bank, Thiruvananthapuram. It was

charged with a mortgaged debt by deposit of title deed for a loan

availed by the father for his business purpose. It was attached

and charged with a decree debt in O.S. No.113/1979 filed by the

Syndicate Bank before the Sub Court, Thiruvananthapuram.

The Plaintiff has filed the suit with the intention of wreaking his

vengeance on Defendant No.5 since he stood with his father

and mother in the matter of several litigations filed by the Plaintiff

against them and lived with them till their last days.

8. Since the Defendant No.5 filed Written Statement raising

contentions on the strength of Ext.X5 Will, the Defendant Nos.1

to 4 filed separate Written Statements dated 03.01.1996,

29.11.1995, 06.12.1995, 14.02.1996 and the Plaintiff filed

Replication dated 14.07.1996 challenging Ext.X5 Will. The 2025:KER:72736

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Defendant No.5 filed additional Written Statement dated

03.11.1999 also.

9. The Defendant No.1 filed Written Statement contending, inter

alia, that Defendant No.5 and DW5 conspired for mutual benefit

and DW5 has scribed the Will. DW5, who is an Advocate, used

to appear for the mother in several litigations. Mother used to

sign papers presented and approved by DW5 without any

further clarification. DW5 betrayed the confidence reposed in

him by the mother. Ext.X5 Will is a fraudulent Will, which was a

bait of DW5 for making use of the same for Defendant No.5 for

his illegal means. The attestors to Ext.X5 are not genuine.

Mother was not properly identified before the Sub Registry. The

alleged Will was procured by forgery, fraud and impersonation.

The alleged Will was not scribed as dictated by the mother, nor

was it read out to her by the scribe for the approval of the mother

as stated therein. If, by any reason, it is found that the signature 2025:KER:72736

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of the testator in the Will resembles that of the mother, the Will

is vitiated by fraud and it was brought into existence without the

knowledge of the mother by playing fraud on her somehow or

other. The Will is vitiated by fraud, coercion, undue influence,

misrepresentation, mistake and importunity. The entire Plaint

Schedule properties have to be partitioned in six equal shares

and the Plaintiff and Defendants are entitled to get 1/6 share

each, as the mother died intestate. Though father had certain

liabilities, he regained his financial status when the litigation

ended in his favour with respect to the contract works. The

father got release of all his landed properties that stood

hypothecated, which included the properties that stood in the

name of the mother. As advised by the father, the mother

executed settlement deeds in favour of the Defendant Nos. 2, 3

and 4. Father executed a settlement deed in favour of the

Plaintiff. Father endowed Rs.8 lakhs in cash to mother for her 2025:KER:72736

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financial security and also as a gesture of affection for parting

the landed properties in favour of the children. Father was

concerned with the future of the Defendant No.5. He felt it was

unwise to register any fixed asset in favour of the Defendant

No.5 before a source of income was established for him. He had

protected the interest of Defendant No.5 under the registered

Will.

10. The Defendant No.2 filed Written Statement contending, inter

alia, that Ext.X5 Will is a fabrication brought into existence

without the deceased knowing its contents. It is not a genuine

document. It is a false document brought into existence by

Defendant No.5 with the help of his personal friends and

associates who had figured as attestors with the sole object of

acquiring all the assets left behind by the Testator. Ext.X5 is not

signed by Gouri Ponnamma. DW5, who is alleged to have been

the scribe to the Will, is a total stranger to the Testator on the 2025:KER:72736

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alleged date of execution of the Will. All his contacts with the

family during those days were only through the Defendant No.1.

He had no direct contact with the Testator, nor had any occasion

to repose her confidence in him. The Will is not properly

executed. It does not represent the wishes of either the Testator

or her husband, who always shared his assets equally among

the children. During the later part of 1982, Gouri Ponnamma had

some mental tension and was suffering from serious ailments

like Diabetes, Angina and hypertension and most of the other

ailments for which she was under the management of

Defendant No.2. She was incapable of making any disposition

of any of her assets by writing a Will. She was incapable of

exercising any free will of her mind or doing any act of volition

by herself. The reason for the sudden collapse of the health

condition of Gouri Ponnamma was due to the mental agony

caused to her by Defendant No.5, who not only cheated her and 2025:KER:72736

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obtained money by fraudulent means, forging her signature, but

also obtained lakhs of rupees from the Bank and gone to the

extent of making false document showing that she is made

partner in a joint venture business along with him. Since the

entire assets are allotted to Defendant No.5 as per Ext.X5 Will,

it is an unfair and unjust disposition of property. This alone is

sufficient to raise suspicion about the execution of the Will.

There is no chance for the mother to give her entire property to

the Defendant No.5 since the mental strain caused to her by the

Defendant No.5 was too much and the money which he had

swindled by defrauding her was very heavy which she was well

aware that all the children got equal right over it. If it is found

that the signature of the Testator in the Will resembles that of

Gouri Ponnamma, the Will is vitiated by fraud, coercion, undue

influence, misrepresentation and mistake and the Testator was

not acting on her own free will. Defendant No.2 is also entitled 2025:KER:72736

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to get 1/6 share over the Plaint Schedule Properties and prayed

for partition and separate possession of 1/6 share in the Plaint

Schedule Properties.

11. The Defendant No.3 filed Written Statement contending, inter

alia, that Gouri Ponnamma died intestate. She never thought of

executing any document during her lifetime regarding her

assets and she never executed any document whatsoever. The

execution and registration of the Will is a concocted story made

by the Defendant No.5. No circumstance has arisen for such

execution of a Will during her lifetime. The vessels valued at

more than Rs.5 lakhs, which were given to the Defendant No.3

by the father, were kept in Jagathy House, Shanghumugham,

while the Defendant No.3 was in America, were not given back

by the Defendant No.5, who is residing in the said house.

Defendant No.3 reserves her remedy to get those

articles/vessels through appropriate proceedings. Defendant 2025:KER:72736

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No.3 is entitled to get a decree allowing 1/6 share in the Plaint

Schedule Properties.

12. The Defendant No.4 filed Written Statement contending, inter

alia, that all the properties owned by the mother during her

lifetime were that of the father, either earned by him in the name

of the mother or derived by her as per Ext.B19 Will executed by

the father. During the lifetime of the father, he had executed

Wills and Settlement Deeds in favour of his wife, children and

relatives. Ext.B19 is the last Will. By Ext.B19, after

acknowledging and endorsing the earlier documents executed

by him, he bequeathed all the wealth and assets which

remained in his name and those which remained to be received

and realised by him in favour of the mother. The properties

bequeathed by the father as per Ext.B19 Will in favour of the

mother was only as a trustee for the benefit of both herself as

well as her children. The intention of the father was to safeguard 2025:KER:72736

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her interest and domination in the family and after her death the

properties should be inherited by the children. The intention of

the mother was also that. Mother died intestate. Defendant No.5

got Ext.X5 Will registered quite secretly on 21.11.1994. The said

act was after notice of the suit and order of injunction dated

16.11.1994 passed by the Court. Without giving breathing time

and with extreme secrecy, he has effected mutation of all the

immovable properties in his name and paid revenue tax for it.

He filed Applications for impleading in the pending litigations,

claiming to be the sole legal heir of the mother. He attempted to

transfer bank accounts/deposits from the name of the mother to

his name. Ext.X5 Will is a forged document created by

Defendant No.5 and the scribe. The Defendant No.4

emphatically says that her mother was never a chicken-hearted

lady to execute a closed Will. Though she was illiterate, she was

brave and of a dominating nature. Above all, the possibility of 2025:KER:72736

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the execution of a Will in 1982 by her is an impossibility. The

situation and atmosphere were never favourable for that. She

never kept anything secret from Defendant No.4. In every

matter and even in simple matters, she used to get opinion from

Defendant No.4. She was having full trust and confidence in

Defendant No.4. The Defendant No.4, Defendant No.5 and the

mother were moving together in a quite cordial and cooperative

manner and doing things after deliberations. The Defendant

No.5 suddenly withdrew from the company of the Defendant

No.4. Practically, he was trying to evade her. The scribe, who

was also keeping a very good relationship with Defendant No.4

was also adopting an evading policy. The Defendant No.4 came

to know from Ext.X5 Will that the properties bequeathed by the

father to the Defendant No.4 as per Ext.B20 Will are also

included in Ext.X5 Will. It is found that the said property was

included in the application for grant of Letters of Administration, 2025:KER:72736

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and hence, in the Letters of Administration to Ext.B19 Will

granted by the District Court. Since the property happened to be

included in the Application from which O.S.No.9/1977 arose, the

Defendant No.4 believes that it was an inadvertent mistake

committed while preparing the Application. Mother would have

never meant to include the property already bequeathed to the

Defendant No.4. In Ext.B19 Will, there is no schedule of

properties, but it is made clear that the properties covered by

the Wills and Settlement Deeds already executed are excluded

in Ext.B19 Will. Since Defendant No.5 has claimed the said

property on the basis of Ext.X5 Will and effected mutation of the

property which is in the ownership and possession of Defendant

No.4, she is constrained to take necessary steps to remedy the

mistakes in separate proceedings. The right of half of the

movables in Jagathy House bequeathed as per Ext.B23 Will in

favour of Defendant No.4 by the father is also seen included in 2025:KER:72736

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Ext.X5 Will. The Defendant No.4 alone has the absolute right

over the said movables. Father had not executed Ext.B19 Will.

So the Defendant No.5 cannot claim properties on the basis of

Ext.X5 Will, as there is no derivative title to the Testator. Ext.X5

Will is a document created by the Defendant No.5 and the scribe

with the help of his clients and henchmen. It is a fabricated and

fraudulent document. Mother had no opportunity to know about

the said Will. The said Will was not prepared as instructed by

the mother. The statement that the Will was prepared by the

scribe as per the instructions of the mother is an utter falsehood

and a fraudulent one. The Will can either be by forging the

signature of the mother or by using blank papers entrusted to

the Defendant No.5 and the scribe for the purpose of the cases

pending in various courts. It is an unconscionable Will and

unenforceable. Mother had no intention at all, even in her wild

dreams, to disinherit her children and give the entire properties 2025:KER:72736

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to the Defendant No.5 alone. The Will is void and

unenforceable. The Defendant No.5 has misappropriated not

less than Rs.150 lakhs, which came into the hands of the mother

as dues to the father. He is bound to answer and account for the

same. Though in the Will and in the pleadings of the Defendant

No.5, he says about the burden and debt, not even a single pie

has been lost to him and spent by him. All his assets are that of

the father and the mother alone. He was gifted with the most

valuable property, with a palatial building, Jagathy House, which

is worth more than double of all that are settled and gifted to the

Defendant No.4. There is no liability falling on him on account

of the father and mother. The Defendant No.5 can never

become the sole proprietor of N.C. and Company. The

Defendant No.4 is entitled to get the share and profits of the said

company, as the mother was the principal partner following the

father. The Defendant No.5 is not entitled to get it on the basis 2025:KER:72736

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of the Ext.X5 fraudulent Will. He is entitled to get only 1/6 share

of the properties included in the plaint. The Defendant No.4 is

entitled to get 1/6 share of all the wealth and assets left by her

father and mother and included in the plaint schedule. The claim

of the Defendant No.5 that he had looked after the father and

mother is a hollow one. On the other hand, he was enjoying life

like anything under their care and with their assets. He earned

more than enough from them both directly and indirectly. The

Will is not at all a document executed, signed or deposited by

the mother. It is an impossibility. The Will is to be declared as

void. A Decree is to be passed, allowing 1/6 share of all the

properties left by the mother to Defendant No.4. The Defendant

No.4 is entitled to get half of the movables kept in Jagathy

House and described in Ext.B23 Will executed by the father.

13. The Plaintiff filed Replication contending, inter alia, Gouri

Ponnamma had not executed any Will. The Will relied on by the 2025:KER:72736

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Defendant No.5 is forged, fabricated, illegal and improper. It is

brought into existence at the instance of the Defendant No.5

and the Scribe for obtaining undue enrichment. It is not binding

on the plaintiff or other shares of the property and the properties

are to be partitioned in accordance with the law of succession

governing the parties. The attestors of the Will are not known to

Gouri Ponnamma and are known to be the stooges and clients

of the scribe. The ugly haste shown by the Defendant No.5 in

registering and effecting mutation itself will show the dirty

intention of the Defendant No.5. The statement that the

Defendant No.5 is the sole owner of the company is totally

wrong. The N.C. and Company had assets worth several lakhs

of rupees. The Defendant No.5 has misappropriated the entire

assets of the firm and he is bound to account in this suit, the

amounts he has misappropriated. Property given to the 2025:KER:72736

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Defendant No.5 was several Crores. Debts due to the properties

were cleared by father.

14. As per the Order dated 21.08.2004 in I.A. No.5829/1998, the

Defendant No.1 was transposed as Additional 2nd Plaintiff. The

Original Plaintiff and the Additional 2nd Plaintiff are hereafter

referred to as the 'Plaintiff No.1' and 'Plaintiff No.2' respectively.

15. The Defendant No.5 had filed I.A.No.4860 of 1999 under Order

XVIII Rule 3A of the CPC to permit him to adduce evidence after

examining the witnesses on his side. The said Application was

dismissed by the Trial Court. The matter was carried in revision

to this Court in C.R.P. No.374 of 2000 and the same was

dismissed. The Defendant No.5 filed Civil Appeal No.6102 of

2000 before the Hon'ble Supreme Court. Before the Supreme

Court, the Defendant No.5 changed his stand and declared that

he has no intention to examine himself as a witness. Based on 2025:KER:72736

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the said submission, the Hon'ble Supreme Court passed the

following order.

"Learned counsel for the appellant has stated before us which is also recorded earlier in our order dated 14.7.2000 that the appellant does not desire to appear as a witness in this suit. In view of this, the very question of the priority of his examination first loses its credence. In view of this, the court may proceed to examine the evidence in terms of Sections 67 and 68 of India Evidence Act. Hence no question of insisting upon the appellant to be examined first arises now".

16. In the first round of trial, the Plaintiffs examined PWs.1 and 2

and marked as Exts.A1 to A35(a). PW1 is the Plaintiff No.2 and

PW2 is the daughter of PW1. The Defendant No.4 was

examined as DW7. The Defendant No.5 examined DWs 1 to 6

and marked Exts. B1 to B50 and Exts.X1 to X8. DW1 is the

District Registrar in charge, who brought the records before the

Court. DW2 was the District Registrar in charge on 01.11.1982

before whom Ext.X5 Will is alleged to have been deposited.

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DW3 was the then District Registrar, who gave charge to DW2.

DW4 is the attestor to Ext.X5 Will. DW5 is an Advocate of

Thiruvananthapuram Bar, who is the scribe of the Ext.X5 Will.

DW6 is the District Registrar who was summoned to produce

the Receipt Books and other documents which were not

produced by DW1.

17. The Trial Court had dismissed the suit as per the Judgment and

Decree dated 21.08.2004, holding that Ext.X5 Will was

executed by the mother, Gouri Ponnamma, out of her own free

will and consent, thereby bequeathing all the Plaint Scheduled

Properties to the Defendant No.5 and he is the absolute owner

of the same. The Trial Court upheld Ext.X5 Will mainly holding

that Gouri Ponnamma was having a sound disposing mind on

the alleged date of execution of Ext.X5 Will; that the Propounder

has discharged his burden to prove the execution of the Will by

examining DWs.1 to 5; that the evidence of DW4 and DW5 2025:KER:72736

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could be relied on as a whole, especially because DW5 is

admittedly a senior advocate of the bar; and that there is no

suspicious circumstances in existence as alleged by the Plaintiff

and Defendants Nos.1 to 4 in the creation of Ext.X5 Will.

18. The Plaintiffs and the supporting Defendants filed R.F.A.

Nos.552 & 620 of 2004, 540 of 2005 and 40 of 2006 in this Court

and the Division Bench of this Court disposed of all the appeals

by a common judgment dated 05.03.2013 setting aside the

judgment and Decree of the Trial Court dated 21.08.2004 and

remanding the matter back to the Trial Court for fresh disposal

after affording both sides opportunity to adduce further

evidence, if they choose. This Court held that the evidence

adduced by the propounder of the Will must satisfy the judicial

conscious of the court; that Law places a very heavy burden on

the Defendant No.5 to prove the due execution of the same to

the satisfaction of the Court; that when there are suspicious 2025:KER:72736

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circumstances, the Court has to look into the entire surrounding

circumstances and probabilities; that the evidence placed on

record is insufficient to enter into a definite finding; and that on

going through the evidence and the impugned judgment, this

Court is of the view that the Trial Court has not taken serious

note of the same. This Court noticed that the following

questions remain unanswered, though the Defendant No.5 is

legally bound to discharge his burden of explaining the same:

i) How did the fifth Defendant get possession of Exhibit X2

[Ext.X6(a)] receipt?

ii) How, when and from whom did the fifth Defendant get

information regarding Exhibit X5 Will?

iii) Whether the fifth Defendant was aware of the contents of

Ext.X5 Will before its opening on 21.11.1994 so as to exclude the

presence of other heirs at the time of opening?

iv) How did the fifth Defendant get an impression that deceased 2025:KER:72736

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Ponnamma was in enemical terms with other children especially

DW7, PW1, D2 etc.

v) How did the fifth Defendant get information that deceased

Ponnamma consulted Venkitachalam Iyer before execution of

the alleged Will as suggested?

vi) How did the fifth respondent get information that the other

parties to the case got information of Ext.X5 Will before filing of

this case ?

19. After remand, the Defendant No.5 filed I.A.No.1534/2016 for

excusing delay of 15 days for taking pre-trial steps,

I.A.No.1535/2016 for summoning the District Registrar,

Thiruvananthapuram for production of thumb Impression

Register for the period covering November, 1982 which bears

the original thumb impression of Gouri Ponnamma at page 78

of the Register, I.A.No.1536/2016 directing the Plaintiffs and

Defendant Nos.2 to 4 to produce the original of Exts.B18, B25, 2025:KER:72736

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31

B26 and B28 Settlement Deeds executed by Gouri Ponnamma

in their favour which were in their custody, I.A.No.1537/2016 to

send the original of Exts.X1, X3, B18, B25, B26 and B28 to the

Director, State Finger Print Bureau, Pattam,

Thiruvananthapuram and directing to analyse and report

whether the admitted thumb impression in Exts.B18, B25, B26,

B28 are the same or made by the same person whose thumb

impression is found in Ext.X1 and the original of Ext.X3,

I.A.No.1614/2016 to keep in abeyance the oral evidence of

himself till the report of the Finger Print Bureau is obtained,

I.A.No.1615/2016 to keep Ext.B18 in safe custody and

IA.No.1836/2016 to summon the Sub Registrar, Chalai in

Thiruvananthapuram to produce the Thumb Impression

Register for the period covering between March and April 1975

which bears the original thumb impression of the executant of

the Settlement Deed No.688/75 dated 31.3.1975, Settlement 2025:KER:72736

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Deed No.735/75 dated 7.4.1975 and Settlement Deed

No.736/75 dated 7.4.1975 of Chalai Sub Registrar's Office,

Thiruvananthapuram. The Court below by a Common Order

dismissed all the Applications except allowing I.A.No.1534/2016

for excusing delay of 15 days for taking pre-trial steps.

20. The Defendant No.5 filed O.P.(C) No.1853/2016 in this Court

challenging the said Common Order. The Plaintiff No.2 filed

OP(C).No.2005/2016 challenging the dismissal of

I.A.No.1632/2016 for appointment of receiver etc.

21. This Court disposed O.P.(C) No.1853/2016 and O.P.(C)

No.2005/2016 by a common judgement dated 10.03.2017

allowing O.P.(C) No.1853/2016 in part and dismissing O.P.(C)

No.2005/2016. This Court set aside the Orders in

I.A.Nos.1535/2016,1537/2016 & 1836/2016 and allowed those

Applications directing the District Registrar to produce the

documents mentioned therein; directing the Trial Court to get 2025:KER:72736

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33

the assistance of the Director of State Finger Print Bureau for

getting the enlarged prints of the finger prints which is required

for comparison from the original document with the help of

technology available with them and then after proving those

documents through the witnesses and getting attested copy of

those portions of the document from the Registrar marked

through that witness and return the original to the Registrars

concerned; directing the Trial Court to give instruction to the

Director, State Finger Print Bureau, Thiruvananthapuram to

complete the examination and submit the report. This Court set

aside the order dismissing I.A.No.1614/2016 to the extent

denying examination of the Defendant No.5 and sustaining the

Order on all other aspects, permitting the Defendant No.5 to

examine himself so as to explain the circumstances sought to

be explained by him in the Remand Order in the RFAs making

it clear that he is not permitted to adduce any evidence 2025:KER:72736

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34

regarding the execution of the Will while he is being in the box

in order to fill up the lacunas in the evidence of the persons who

have been examined on his side to prove the execution of the

Will; directing the Trial Court to give an opportunity to the

Defendant No.5 to examine other witnesses if any required by

filing additional witness list, if he wants to examine the things

sought to be explained by him by the Remand Order, further

directing that after such evidence, the Plaintiff and other

supporting Defendants also must be given an opportunity to

adduce evidence to controvert the evidence adduced by the

Defendant No.5 to prove their case and disprove the case of the

Defendant No.5. It is held in the said judgment that Remand

Order can be treated as change of circumstances warranting

the Defendant No.5 to adduce evidence on certain aspects in

respect of which suspicion has been raised by the Trial Court

and remitted the case for the purpose of removal of the same 2025:KER:72736

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by the Defendant No.5 by giving opportunity to the parties to

adduce further evidence; that the Trial Court was not justified in

denying an opportunity for the Defendant No.5 to examine

himself as party witness, but there is no necessity to postpone

his evidence till the expert opinion is obtained and he needs only

to prove those aspects which was described in Paragraph 18 of

the Remand Order of this Court for which the expert opinion is

not required.

22. After remand, DW7 was further examined. The Defendant No.5

examined himself as DW8, one Chartered Accountant who is

the co-brother of the Defendant No.5, who was witness to

Ext.B18 was examined as DW9, and the Fingerprint Expert was

examined as DW10, who proved his Ext.X10 Report.

23. The Trial Court by the impugned judgment decreed the suit

passing Preliminary Decree for partition of the Plaint A schedule

properties, Plaint B Schedule properties and half share in the 2025:KER:72736

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36

Plaint C schedule Property belonged to Gouri Ponnamma

among the Plaintiffs and the Defendants 2 to 5, allotting 1/6

share to each of them, holding that Ext.X5 Will is not the genuine

Will of Gouri Ponnamma and Gouri Ponnamma died intestate.

24. I heard the Learned Senior Counsel for the Appellant,

Sri. S. Sreekumar, instructed by Adv. Sri. Shyam Sekhar K.R.,

the Learned Senior Counsel for the Respondent No.1,

Sri. S.V. Balakrishna Iyer, instructed by Adv. Sri. Thoufeek

Ahamed, the Learned Senior Counsel for the Respondent No.2,

Smt. Sumathi Dandapani, instructed by Adv. Sri. Millu

Dandapani, the Learned Counsel for the Respondent No.4

Sri. V.A. Ajakumar and the Learned Counsel for the

Respondents No.6 to 8, Sri. M. Sreekumar.

25. Learned Senior Counsel for the Appellant/Defendant No.5,

Sri. S. Sreekumar contended that the Trial Court acted illegally

in disbelieving Ext.X5 Will. The Trial Court misconstrued and 2025:KER:72736

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37

misunderstood the evidence of DW4 attesting witness and DW5

scribe. The Trial Court failed to appreciate the circumstances in

which Ext.X5 Will was executed by the mother in favour of the

Defendant No.5, from the right perspective. It is in evidence that

all other children had been litigating with the parents and the

Defendant No.5 alone had been looking after them during their

old age. Learned Senior Counsel invited my attention to various

litigations within the family - O.S. No.164/1976 filed by the

Plaintiff No.1 against father claiming oral partnership of Kuttiyadi

Project, O.S. No.1006/1977 filed the Plaintiff No.1 for Defendant

No.3 as her power of attorney, against the mother and

Defendant No.5 for permanent prohibitory injunction with

respect to the property where father was buried thereby denying

the mother to undertake periodical prayers therein, O.S.

No.180/1977 filed by the Defendant No.3 for partition of the

properties of father ignoring Ext.B19 Will executed by father and 2025:KER:72736

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38

L.A.(O.P.) No.92/1977 filed by mother for probate of Ext.B19

Will, which had to be converted into O.S. No.9/1977 on account

of the opposition against probate. It is in evidence that all the

children, except the Defendant No.5, were given enormous

wealth. The only property given to the Defendant No.5 was the

family house by name 'Jagathy' situated in Shanghumugham as

per F Schedule in Ext.A20 Will of the father. The parents had

been residing in the said house with Defendant No.5. The said

property was burdened with liability, as the same was

mortgaged in favour of Syndicate Bank for availing loan by the

father for his business. It is quite natural that when other children

were provided with sufficient assets by the parents, the

remaining properties are given to the son who had derived

virtually nothing. It is quite natural and highly probable that the

mother bequeathed her properties in favour of one among the

children who supported her. There are no suspicious 2025:KER:72736

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39

circumstances surrounding the execution of the Will. In order to

keep the Will a secret, a sealed cover procedure was adopted

by the mother. The contesting parties could not bring out any

violation of the procedure for sealed cover or for registration.

The Will was opened after the death of the mother, and it was

duly registered. The Will was executed after complying with all

the legal requirements for the same. The Defendant No.5, as

the propounder of the Will, has discharged his burden as

required under Section 63(c) of the Indian Succession Act read

with Section 68 of the Indian Evidence Act. The Defendant No.5

examined DW4, who was one of the attesting witnesses to

Ext.X5 Will, and proved the execution of Ext.X5 Will by the

Testator and attestation of the same by both the attestors. The

evidence of DW4 could not be shaken in cross-examination.

The Trial Court relied on minor discrepancies in her deposition

to disbelieve her evidence. The Trial Court failed to consider the 2025:KER:72736

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40

fact that the witnesses were examined decades after the

execution of Ext.X5 Will. The Trial Court even went to the extent

of gauging the friendship of the Testator with DW4 with

reference to the caste hierarchy of the parties. Though not

required, the scribe of Ext.X5 Will was also examined as DW5.

DW5 was a senior Lawyer and his evidence fully corroborated

the evidence of DW4, the attesting witness. The thumb of Gouri

Ponnamma on Ext.X5 is proved by Ext.X10 Report of DW10

Expert Witness, who compared it with the admitted thumb

impression. The contesting parties did not have a specific or

consistent case with respect to their challenge against Ext.X5.

They alleged the lack of testamentary capacity, forgery and the

presence of vitiating elements together vaguely without material

details in support of the same. When the father had executed

Ext.B19 Will bequeathing his properties in favour of the mother,

the Defendant No.3 filed O.S. No.180/1977 seeking partition to 2025:KER:72736

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41

defeat Ext.B19 Will and the said suit, renumbered as

O.S.No.2/1978, was dismissed as per Ext.B2 judgment, by

which O.S. No.9/1997 filed by the mother was decreed, granting

probate of Ext.B19 Will. The present suit is another attempt

similar to O.S. No.2/1978. It is the admitted case of all the

children that Gouri Ponnamma was a strong lady. She died

about 12 years after executing Ext.X5 Will. Even though the

contesting parties challenged the testamentary capacity of

Gouri Ponnamma vaguely in their Written Statements, they did

not prosecute such contention during evidence. Gouri

Ponnamma executed a number of registered documents after

Ext.X5 Will. Learned Senior Counsel cited the decisions of the

Hon'ble Supreme Court in Shashi Kumar Banerjee v. Subodh Kumar

Banerjee [AIR 1964 SC 529], Daulat Ram and Others v. Sodha and Others

[(2005) 1 SCC 40], Sridevi v. Jayaraja Shetty [(2005) 2 SCC 784],

Pentakota Satyanarayana and Others v. Pentakota Seetharatnam and 2025:KER:72736

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42

Others [(2005) 8 SCC 67], B. Venkatamuni v. C.J. Ayodhya Ram Singh

and Others [(2006) 13 SCC 449], Meena Pradhan v. Kamla Pradhan

[(2023) 9 SCC 734] and the decisions of this Court in Kallangadi

Edathil Chathan Veettil Kumaran Kidavu and Another v. Niduvanchalil

Keloth Damodaran Nair and Others [2013 (2) KHC 191] in support of

his contentions.

26. Learned Senior Counsel for the Respondent No.1/Plaintiff No.1

Sri. S.V. Balakrishna Iyer contended that the Trial Court is

perfectly justified in disbelieving Ext.X5 Will. The evidence of

DW4, who was cited as one of the attesting witnesses, and

DW5, who was cited as the scribe, is totally unreliable to prove

the execution of Ext.X5 Will. There are several suspicious

circumstances surrounding the execution of Ext.X5 Will. Those

suspicious circumstances are not explained and removed by the

propounder. Ext.X5 is an unnatural disposition of the remaining

properties of the parents. Since all the children, including 2025:KER:72736

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43

Defendant No.5, were provided with sufficient assets by the

parents, the mother would never bequeath the remaining

properties in favour of Defendant No.5 to the exclusion of

others. Father had purchased properties in the name of the wife

of Defendant No.5 - Latha. PW1 specifically deposed that the

father had purchased quarry property of 2.06 acres in the name

of the wife of Defendant No.5 and the same was not disputed

by Defendant No.5. Gouri Ponnamma had specifically stated in

O.S.No.2/1978 that the children had been provided

sumptuously. It is proved by Exts.B25, B26, B28, B29, B30,

Settlement Deeds and Exts.B20 and B23 Wills. Defendant No.5

in his Written Statement admitted that father had received

compensation. As DW8, he admitted that father had settled the

liabilities. Hence, there could not be any liability on the most

valuable Jagathy house, which is given to the Defendant No.5.

It is the Defendant No.5 who had been residing with the mother 2025:KER:72736

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and misappropriating all the income of the mother, which

includes amounts due to the father under various litigations,

which was later obtained by the mother. The Defendant No.5 in

his Written Statement admitted that Gouri Ponnamma realised

the entire amount due under the Decree in O.S.No.25/1974.

DW5 did not specifically deny on questioning whether the

decree amount was around Rs.77 Lakhs. He admitted that he

had entrusted the cheques received in O.P.(Arb) No.26/1971 to

Gouri Ponnamma. It is in evidence that Gouri Ponnamma had

no confidence in Defendant No.5. DW5 had no contact with

Gouri Ponnamma at any time before the date of Ext.X5. Gouri

Ponnamma had no confidence in DW5 to ask him to write the

Will. The signatures in Ext.X5 Will, Ext.X1 Cover and Ext.X3

Register were not proved to be that of Gouri Ponnamma. The

admitted signatures of Gouri Ponnamma were available before

the Court in Exts.A7, A10, A11, A16, A17, A21, A23, B7 and B8 2025:KER:72736

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45

for obtaining a report from an expert. But no attempt was made

by the propounder to prove the signature, when the contesting

parties specifically pleaded forgery. Exts.A7, A10, A11, A13,

A16, A17, A21, A23, B7, B8 and B24 would prove that Gouri

Ponnamma used to sign with her name. Name is an integral part

of her signature. But in Ext.X1 and X3, the sign does not contain

the name. There is apparent difference of the signatures in

Exts.X1 and X3 on comparison with the admitted signatures in

Exts.A7, A10, A11, A13, A16, A17, A21, A23, B7, B8 and B24,

even with naked eyes. No explanation is there as to why the

signatures in Exts.X1 & X3 were not sent for expert evidence.

Exts.X1, X3, X5 and Ext.B18 were the result of the plan

conspired by Defendant No.5 with DW5 scribe running over the

years to snatch the properties of the mother to the exclusion of

all other legal heirs. The Defendant No.5 conspired with DW5

Advocate and caused the creation of Ext.X5, misusing the 2025:KER:72736

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46

signatures of Gouri Ponnamma in blank papers obtained under

the pretext of using the same in pending litigations. Exts.A13,

B7, B8 and B24 show 'x' markings. It would indicate the practice

of signing blank papers by Gouri Ponnamma for using them for

preparing pleadings in pending litigations. He got Ext.X5

deposited, forging the signature and thumb impression of Gouri

Ponnamma through another person in the year 1982. Later, he

caused to register Ext.B18 Bond in the year 1987 using the

thumb impression of the person who affixed the thumb

impression with the malicious intention to use the same for

comparison with Ext.X5 to prove the thumb impression of Gouri

Ponnamma. Two signatures made at the time of registration of

Ext.B18 would clearly reveal that they were made by somebody

else. A Bond does not require registration under Section

17(2)(vi) of the Indian Registration Act. No stamp duty is

payable for a bond executed in favour of Civil Court. No thumb 2025:KER:72736

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47

impression is required for registration. Ext.B18 Bond was given

in compliance with the direction of this Court in the Order dated

27.07.1987 in C.M.P. No.19633/1987 in A.S. No.194/1987.

There was no direction in the said Order to execute a registered

Bond. Though Exts.B34, B35 and B36 documents containing

the thumb impressions of Gouri Ponnamma were available

before the Court, Ext.B18 alone was purposefully sent to the

expert as the admitted thumb impression. The thumb

impression in Ext.B18 is not admitted to be the thumb

impression of Gouri Ponnamma. Hence, Ext.X10 Report cannot

be used as evidence for proof of thumb impression of Gouri

Ponnamma in Exts.X1 and X3. Nobody was examined to prove

that Gouri Ponnamma appeared before the Registrar on

01.11.1982 to deposit Ext.X1 Cover containing Ext.X5 and

signed on Exts.X1 and X3. It is in evidence that the recitals in

Ext.X5 that the Defendant No.5 was not given any property by 2025:KER:72736

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48

Gouri Ponnamma and that properties received by him from the

father are heavily encumbered are incorrect. No document is

produced to prove such encumbrance. In Ext.X5, the property

having an extent of 2 acres 38.125 cents already bequeathed to

the Defendant No.4 as per E Schedule of Ext.B20 is also

included. If Ext.X5 was executed by Gouri Ponnamma, the said

property would not have been included. Defendant No.5 and his

family had been residing with Gouri Ponnamma in Jagathy

House. He has no explanation as to where he was during the

preparation and execution of Ext.X5 Will. It is unbelievable that

Defendant No.5 did not know about the visits of the DW5 to the

house for the preparation of Ext.X5. The contention of the

Defendant No.5 is that Gouri Ponnamma wanted to keep the

Will a secret, and hence, a closed cover procedure was

adopted. Though DW4 deposed that Gouri Ponnamma wanted

to keep the Will a secret and that the attestors are not known to 2025:KER:72736

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49

the children, she herself admitted that she knows Defendant

No.5 and his wife. It is in evidence that DW5 is well known to

the children as he had been appearing for some of the family

members since the year 1977. Defendant No.5 deposed that

soon after the deposit of the Will, Gouri Ponnamma told him

about the Will and cautioned him not to tell anyone. But in the

Written Statement, he has no case that he came to know about

the Will before the death of Gouri Ponnamma. The close

association of DW5 Scribe and Defendant No.5 is proved before

the Court. If Gouri Ponnamma had any intention to execute a

Will secretly, she would not have selected DW5. Over-

enthusiasm of DW5 to uphold Ext.X5 Will is evident throughout

his examination. His evidence would reveal that he entered into

the box as a substitute for the propounder who stayed away

from the witness box. DW5 was examined after 20 years of the

execution of Ext.X5. Even then, he could depose the names, 2025:KER:72736

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50

including the initials of the attestors, even without looking into

the Will. This would clearly prove the close contact of DW5 with

the attestors. DW4 admitted that her husband, who is the other

attesting witness, had an acquaintance with DW5 and that she

was introduced to DW5 by her husband on the date of execution

of Ext.X5. The evidence of DW4 would reveal that it is DW5

who had helped her in her civil case to find a lawyer in the High

Court. Even though she feigned ignorance that Defendant No.5

was the Managing Partner of N.C. & Company and about the

identity of Ramalingam Nadar, who was the Consultant

Engineer of N.C. & Company. Ext.A2 judgment would reveal

that Ramalingam Nadar signed a Report prepared by another,

unduly favouring DW4. Defendant No.1 was in a position of

active confidence with the parents, and hence, Gouri

Ponnamma would not have disinherited him. The motive behind

the preparation of Ext.X5 Will is that the Defendant No.5 shall 2025:KER:72736

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51

not be made answerable for swindling the mother of all her

wealth, including Rs.8 lakhs entrusted to her by the father as a

security deposit for her, soon after the execution of Exts.B25,

B26 and B28 Settlement Deeds by her. There is a clear

suspicion, as the first attesting witness in Ext.X5 was not

examined. It is highly unbelievable that an uneducated lady like

Gouri Ponnamma had instructed to deposit the Will, without

seeking advice from any other person. The reluctance of

Defendant No.5 to give evidence and offer him for cross-

examination and prayer to defer his evidence until other

witnesses are examined also creates serious doubts

surrounding the execution of Ext.X5 Will. None of the suspicious

circumstances referred to in the Remand Order was removed

by the Defendant No.5. Learned Senior Counsel cited the

decision of the Hon'ble Supreme Court in H. Venkatachala Iyengar

v. B.N. Thimmajamma and Others [AIR 1959 SC 443] and Kavita Kanwar 2025:KER:72736

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52

v. Pamela Mehta and Others [AIR 2020 SC 2614], the Full Bench

decision of this Court in Meenachil Panchayat v. Sivasankara Marar

[2003 (2) KLT 914] and the decision of this Court in Ramachandran

S. v. B. Bhanuvikraman Nair and Another [2017 (5) KHC 75] in support

of his contentions.

27. Learned Senior Counsel for the Respondent No.2/Plaintiff No.2

Smt. Sumathi Dandapani advanced arguments supporting the

submissions made by the Learned Senior Counsel for the

Respondent No.1. Learned Senior Counsel for the Respondent

No.2 tried to distinguish various decisions relied on by the

Appellant, inviting my attention to the facts and circumstances

available in each of the decisions for a better understanding of

the legal principles laid down therein.

28. Learned Counsel for the Respondents Nos.4 & 5/Defendant

Nos.3 & 4, Sri. V. Ajakumar advanced arguments supporting the

submissions made by the Learned Senior Counsel for the 2025:KER:72736

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53

Respondent No.1. Learned Counsel took me to the oral and

documentary evidence available in the case to disprove the

execution of Ext.X5 Will and to substantiate suspicious

circumstances surrounding the Will. Learned Counsel invited

my attention to the definition of the word 'sign' in Section 3 (56)

of the General Clauses Act,1897 and contended that in view of

the said definition, the sign of Gouri Ponnamma includes her

name also. It is admitted by DW5, who was a Senior Lawyer of

Thiruvananthapuram Bar, that the signature of Gouri

Ponnamma contains three components - 'Her Name in

Malayalam', 'GPM' and 'Underline' under GPM. DW8 also

deposed that Gouri Ponnamma signed by writing her name in

Malayalam and 'GPM' in English. Ext.X1 Cover does not contain

the said signature of Gouri Ponnamma. The Trial Court

specifically found that the assets were equitably distributed

among all the children and that the contention that all the 2025:KER:72736

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54

children except the Defendant No.5 were sumptuously provided

by the parents is not correct. The Appellant has not taken any

specific ground against the above finding of the Trial Court in

the Appeal. Such contention of inequitable distribution before

Ext.B19 Will is barred by res judicata as in O.S.No.2/1978 and

O.S.No.9/1977, in which the challenge against Ext.B19 Will was

involved. The mother and all the children, excluding Plaintiff

No.1 and Defendant No.3, took a contention that all the children

were given sumptuously and hence father executed Ext.B19 in

favour of the mother. The finding of the Trial Court that all

children were sumptuously provided assets and the remaining

properties were bequeathed in favour of the mother was upheld

in Ext.B4 Appellate Court judgment. Thereafter, there is no

chance for the mother to state in Ext.X5 that Defendant No.5

was not given sufficient assets. Though Defendant No.5 alleged

that all other children had been inhumanely harassing the 2025:KER:72736

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55

mother, the details of the harassment were neither pleaded nor

proved. The evidence of DWs 8, 9 & 10, who were examined

subsequent to the remand, is not sufficient to remove any of the

six suspicious circumstances mentioned in the Remand Order.

In the judgment of this Court in O.P.(C) Nos.1853 & 2005 of

2016, the evidence of Defendant No.5 is restricted to explaining

the suspicious circumstances mentioned in the Remand Order

alone and his evidence as DW8 could not be looked into to

prove the execution and attestation of the Ext.X5 Will as

required under Section 63 of the Indian Succession Act read

with Sections 67 & 68 of the Indian Evidence Act. It is for the

Defendant No.5, who is the propounder of Ext.X5 Will, to prove

both the deposit and the execution of Ext.X5 Will, but he

miserably failed to prove both. No witness was examined to

prove the deposit. The evidence of DW2/District Registrar

cannot be relied on to prove the presence of Gouri Ponnamma 2025:KER:72736

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56

before him, as he had no case that he personally knew her. The

person who identified Gouri Ponnamma before DW2 should

have been examined to prove the presence of Gouri Ponnamma

before DW2. It is brought out in evidence that DW2 did not follow

the Rules for deposit. The antecedents of DW2 are not

satisfactory as evidenced by Ext.A1 Complaint. He even

admitted that the endorsement on Ext.X1 Cover was made by

him, which shows his active role in the forgery. Ext.X10 only

proves that the thumb impression in Ext.X5 and Ext.B18

belonged to the same person. It does not prove that the said

thumb impressions belonged to Gouri Ponnamma. DW5 is only

a Scribe and his evidence cannot be treated as that of an

attesting witness. Learned Counsel invited my attention to

various contradictions and deficiencies in the evidence of DW4,

who is cited as the Attesting Witness and DW5, who is cited as

the Scribe. The oral evidence of DW4 as to the execution and 2025:KER:72736

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57

attestation of Ext.X5 was brought out through leading questions

which have no evidentiary value at all. There are contradictions

with respect to the details of the cover deposited and the cover

that was taken out from safe custody. DW4 and DW5 deposed

that Ext.X1 Cover was tied with twine lengthwise and widthwise

before deposit, whereas the evidence of DW8 is that Ext.X1

Cover was not tied with twine. This would lead to the conclusion

that the Cover, which was allegedly prepared at Jagathy House,

was not the one that was deposited. The District Registrar who

opened the Cover was not examined. DW4 admitted that when

Gouri Ponnamma signed Ext.X5 Will, the signatures of her and

her husband, Krishna Pillai, were there in the Will. DW5 has no

case that the attestation endorsements in Ext.X5 were made by

him. Though the first attestation endorsement was claimed to

be made by the first Attesting Witness, he was not examined.

Though the second attestation endorsement was claimed to be 2025:KER:72736

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made by DW4, who is the second Attesting Witness, she denied

the same and stated that it was written by DW5. DW4 and her

husband were proved to be the close associates of DW5 as

DW4 had received undue help from DW5 in her own case before

the High Court to create a false Commission Report through the

employee of Defendant No.5 - Sri. Ramalingam Nadar. DW5

deposed the full names and address of the Attestors from

memory after 20 years of execution of Ext.X5. It would prove

that they are the close associates of DW5. Though DW4

claimed friendship with Gouri Ponnamma during temple visits

and claimed to be a regular visitor to the house of Gouri

Ponnamma, she was unable to state other friends obtained

through temple visits, details of the surroundings and location of

the house of Gouri Ponnamma and the details of the children of

Gouri Ponnamma. Evidence of DW4 would reveal that she was

not familiar with the signature of Gouri Ponnamma. No effort 2025:KER:72736

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was made by Defendant No.5 to prove the signature of Gouri

Ponnamma in Exts.X1, X3 and X5 with the help of a Handwriting

Expert. The mandate under Section 67 of the Indian Evidence

Act is not satisfied. The evidence of PW1 and DW7, who are

acquainted with the signature of the mother, that the disputed

four signatures in Ext.X5 do not belong to their mother is liable

to be accepted under Section 67 of the Indian Evidence Act.

There are several corrections in Ext.X5 and the same are not

attested or initialled by anybody. There are three different

handwritings in Ext.X5 and different pens are used. Going by

the case of the Defendant No.5, the first Attesting Witness in

Ext.X5, Sri. Krishna Pillai, husband of DW4, is the predominant

Witness who witnessed the deposit of Ext.X1 Cover. The non-

examination of Sri. Krishna Pillai creates serious doubt. Though

his medical condition is stated as a ground for non-examination,

the same is proved to be false even from the evidence of DW4, 2025:KER:72736

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as DW4 admitted that he can walk, understand things and is

capable of looking after his affairs by himself. The evidence of

DW5 would show his over-enthusiasm to uphold Ext.X5 Will. He

took the role of Defendant No.5 and gave evidence. Many

documents which ought to have been marked through the

Defendant No.5 were marked through DW5. The claim that

DW5 was the Advocate of Gouri Ponnamma during 1982 is

proved to be false, as DW5 admitted that he never appeared for

Gouri Ponnamma exclusively before 1982. If his evidence is

taken into consideration, he was disclosing privileged

communication with his client in violation of Section 126 of the

Indian Evidence Act. It is in evidence that DW5 was the

Advocate of other family members since the year 1970 and in

such circumstances, Gouri Ponnamma would not seek his

assistance to prepare a secret Will. It is in evidence that the

Attestors, the Scribe and the Officers who helped the Defendant 2025:KER:72736

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No.5 to prepare Ext.X5 Will are his close associates and they

had no acquaintance with Gouri Ponnamma during 1982. It is

highly unbelievable that illiterate Gouri Ponnamma dictated the

Will to DW5, who is a Senior Lawyer, to scribe the same. DW5

admitted that he received lakhs of Rupees as a lawyer of Gouri

Ponnamma after 1984 and claimed that those amounts were

given to Gouri Ponnamma, but no evidence was produced in

this regard. DW5 was in the habit of creating false documents

as revealed from the Ext.A3 judgment. DW5 claimed tenancy

over 28 acres of land assigned by the Government in favour of

NSS to establish an educational institution, producing a

fabricated lease deed. The Court found that the records

produced by DW5 in support of the tenancy are fabricated and

doubtful documents. A series of criminal cases were registered

against DW5 and he was directed to keep peace and good

behaviour under Section 107 of the Code of Criminal Procedure, 2025:KER:72736

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as revealed from Ext.A5(a) Charge Sheet and Exts.A6 & A6(a)

Petitions submitted by the Sub Inspector of Police against DW5.

The evidence of DW7 is that Gouri Ponnamma disliked the

association of Defendant No.5 with DW5. The Defendant No.5

is called Raju in family circles, and the same is reflected in

Exts.A12 and A20. If Gouri Ponnamma had scribed the Will, she

would have used the name of the Defendant No.5 as Raju along

with his official name in the Will. Defendant No.5 strangely

claimed that it is his wife who issued receipts to him for

payments made to his mother, but no such receipts were

produced. At the same time, Defendant No.5 wanted to see that

his wife was not examined in the case. It is an admitted fact that

Defendant No.5 and his family had been residing with the

mother at Jagathy House. It is claimed that he and his family

were not there from 29.10.1982 to 02.11.1982. It is not disclosed

why they were absent from the house on those days and 2025:KER:72736

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whether the possibility of their absence was known to the

mother for arranging the execution of the secret Will during

those days. The signature of Gouri Ponnamma in Ext.A34(a)

nominating the Defendant No.5 to S.N. Trust is denied by DW5.

In such a case, the forgery of the signature in Ext.A34(a) could

only be done by its beneficiary, namely, Defendant No.5.

Ext.A31 Bye-Laws of S.N. Trust would prove that no nomination

can be made for hereditary trusteeship. Mother will not assign

trusteeship in S.N. Trust to the Defendant No.5 as per Ext.X5 if

the Defendant No.5 has already become a hereditary trustee as

per Ext.A34(a) Letter dated 10.08.1981. The nature of the paper

used for preparing Ext.X5 would also make it suspicious. It is an

inferior quality paper having unusual size. It is a single sheet of

paper folded into a foolscap paper. The same type of papers

were used by DW5 for preparing various affidavits, statements

of Gouri Ponnamma in the execution proceedings in 2025:KER:72736

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O.S.No.25/1974 & O.P.(Arb) No.26/1971. It is unbelievable that

it is Gouri Ponnamma who provided all the paraphernalia for

preparing Ext.X5 Will to DW5. The paper in which Ext.X5 is

scribed is partially damaged. If a person intends to prepare a

crucial document, he will select only the best paper. A scissor

cut on the top of the paper is admitted by DW5 and he could not

offer a proper explanation for the same. Several reasons are

stated in Ext.X5 for executing the same, namely, Only the

Defendant No.5 supported the Testator after the death of her

husband; No assets were given by the Testator to the Defendant

No.5; The assets given by the father are overburdened with

liabilities; All children, except Defendant No.5, were given

valuable properties which are sufficient for their well-being; and

The Defendant No.5 has no income and he has heavy liabilities.

All these reasons have been proved to be incorrect. Though

DW5 claims that all the relevant documents for preparing Ext.X5 2025:KER:72736

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were given by Gouri Ponnamma, the evidence of DW4

contradicts the same. Ext.B19 Will was scribed by

Venkitachalam Iyer, who was a close friend of the father.

Venkitachalam Iyer was very close to the family members,

including Gouri Ponnamma. It is highly unbelievable that Gouri

Ponnamma did not utilise the service of Venkitachalam Iyer

when she thought of executing a Will. A suggestion was put by

the Defendant No.5 to DW7 in cross-examination that the

mother talked with Venkitachalam Iyer for one hour at Medical

College before executing Ext.X5. The said suggestion is beyond

the pleadings and it is against the plea of high secrecy in the

execution of Ext.X5. The facts and circumstances would clearly

prove that there were no circumstances during the year 1982

compelling Gouri Ponnamma to bequeath all her properties to

the Defendant No.5 alone. The Trial Court rightly disbelieved

Ext.X5 Will and no ground is made to interfere. The Learned 2025:KER:72736

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Counsel cited the decisions of the Hon'ble Supreme Court in

H. Venkatachala Iyengar (supra), Rani Purnima Debi and Another v.

Kumar Khagendra Narayan Deb and Another [AIR 1962 SC 567],

SMT Jaswant Kaur v. Amrit Kaur and Others [(1977) 1 SCC 369], Ram

Piari v. Bhagwant and Others [(1990) 3 SCC 364], Varkey Joseph v. State

of Kerala [1993 Supp (3) SCC 745], Janki Narayan Bhoir v. Narayan

Namdeo Kadam [(2003) 2 SCC 91], B. Venkatamuni v. C.J. Ayodhya Ram

Singh and Others [(2006) 13 SCC 449] and Chinu Rani Ghosh v. Subhash

Ghosh and Others [MANU/SCOR/151646/2024] and the decision of

this Court in Karunakaran v. Sreenivasan [1988 (1) KLT 505] in support

of his contentions.

29. Learned Counsel for the Respondent Nos.6 to 8/Legal Heirs of

the Defendant No.2, Sri. M. Sreekumar also made submissions

supporting the contentions of the learned Senior Counsel for the

Respondents 1& 2 and the learned Counsel for the Respondent

Nos. 4 & 5. Learned Counsel for the Respondent Nos.6 to 8 2025:KER:72736

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further contended that the Defendant No.5 purposefully sought

production of Exts.B25, B26 and B28 for comparison of the

thumb impression of Gouri Ponnamma, fully knowing that those

documents do not contain the thumb impression of Gouri

Ponnamma, to create an impression that all his attempts to

obtain the thumb impression of Gouri Ponnamma other than

that contained in Ext.B18 were failed. Learned Counsel invited

my attention to Exts.B34 to B36, which contained the thumb

impressions of Gouri Ponnamma. No attempt was made by

Defendant No.5 to send Exts.B34 to B36 to the Expert for

comparison of the thumb impression. Proved or admitted

samples alone are permissible for comparison under Section 45

of the Indian Evidence Act in view of Illustration 'C' therein.

Learned Counsel invited my attention to the various

contradictions between the evidence of DW4 and the evidence

of DW5. Learned Counsel invited my attention to the evidence 2025:KER:72736

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of DW9, who was cited by Defendant No.5 to prove the

execution of Ext.B18. The answer with respect to the thumb

impression in Ext.B18 was obtained from him by putting a

leading question. DW9 admitted that he did not see the

execution of Ext.B18. He pleaded ignorance to the question as

to when Gouri Ponnamma went to register Ext.B18. Learned

Counsel invited my attention to various signatures in the

produced documents, which are claimed to be those of Gouri

Ponnamma, to show the difference in the signatures. Learned

Counsel pointed out that there is only signature alone in Exts.X1

and X3, unlike other documents, which contain the name as part

of the signature. Learned Counsel referred to the evidence of

DW5 that the signature of Gouri Ponnamma contains the name

in Malayalam and the sign and that he has not seen the sign

without the name. Learned Counsel cited the decision of the 2025:KER:72736

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Hon'ble Supreme Court in Shashi Kumar Banerjee v. Subodh Kumar

Banerjee [AIR 1964 SC 529] in support of his contention.

30. Learned Senior Counsel for the Additional Respondent No.9,

Sri. Joseph Kodianthara, instructed by Advocate Sri. Abraham

Joseph Markos, contended that on the strength Ext.X5 Will, the

Defendant No.5 and certain others formed the Additional

Respondent No.9 and constructed a Shopping Complex in the

Plaint A Schedule Item No.1 property and another adjacent 10

cents belonging to the son of the Defendant No.5 by spending

more than Rs.10 Crores after availing a loan of Rs.4 Crores from

HDFC Bank. In case this Court finds that the Appeal is liable to

be dismissed, the interest of the Additional Respondent No.9 in

the final decree proceedings may be protected.

31. In reply, the Learned Senior Counsel for the Appellant

contended that as per the law existing on the date of execution

of Ext.B18 Bonds, which are given as security, are liable to be 2025:KER:72736

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registered. Learned Senior Counsel invited my attention to the

Full Bench decision of this Court in R.M. Palat v. P.A. Nedungadi

[1958 KLT 635] in this regard. In the said decision, it is held that

the Security Bond executed in Form No.3 of Appendix G of the

Code of Civil Procedure creates a mortgage and that in view of

Sections 4 & 59 of the Transfer of Property Act, 1882 and

Section 49 of the Registration Act,1908 - quite apart from

Section 17 of the latter Act - such a Bond has to be registered

where the principal money secured is one hundred rupees or

upwards in order to affect any immovable property comprised

therein. The subsequent Full Bench decision of this Court in

Meenachil Panchayat (supra) changing the law laid down in

R. M. Palat (supra), came subsequent to the execution of Ext.B18.

Hence, Ext.B18 was registered as required under the law

existing as on the date of its execution, otherwise, it would have

been invalid. Learned Senior Counsel further contended that the 2025:KER:72736

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evidence of PW2 relied on by the learned Counsel for the

respondents to prove non-execution of Ext.X5 on 30.10.1982 is

thoroughly unreliable, as her presence in the house of Gouri

Ponnamma on the relevant date is proved to be false. The Trial

Court has also not relied on the evidence of PW2. Learned

Senior Counsel cited the Division Bench decision of this Court

in Leela Devi K.R. (Dr.) v. K.R. Rajaram [2025 (4) KLT 114], in which it is

held that genuineness of a Will and factum of its execution or

registration cannot be determined solely on the evidence

produced by the propounder and that in addition to oral and

documentary evidence, Court must consider the surrounding

circumstances, inherent improbabilities, and the nature and

contents of the document; that in a case where the witness cited

to prove the Will under Section 69 of the Evidence Act

establishes that he had witnessed the Testator and the

witnesses signing the Will, it is sufficient proof that the 2025:KER:72736

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attestation by the attesting witnesses is in their handwriting and

that the signature of the Testator is in that person's handwriting;

that it constitutes sufficient compliance with Section 69 and that

when the witness deposes that he saw the executant and the

attesting witnesses sign the document in question, it amounts

to the proof required under Section 69. On the strength of this

decision, the learned Senior Counsel contended that the

evidence of DW4 alone is sufficient to uphold the Ext.X5 Will.

When Plaintiff No.2 gave evidence as PW1, he did not have a

case of impersonation of Gouri Ponnamma. Signature of Gouri

Ponnamma in Ext.B18 is admitted by PW1. PW1 admitted that

he filed the Written Statement only after verification of Ext.X5.

In the Written Statement, he does not have any dispute with

respect to the sign in Ext.X5. Hence, there was no need to

compare the signature of Gouri Ponnamma in Ext.X5. When the

Defendant No.4 gave evidence as DW7, she also admitted 19 2025:KER:72736

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signatures of Gouri Ponnamma in Ext.B18. No suggestion was

put to DW8 that there was impersonation before the Registrar

for Gouri Ponnamma. In view of Section 58 of the Indian

Evidence Act, facts admitted need not be proved. The

Defendant No.5 had taken all earnest efforts to summon the

documents having thumb impression of Gouri Ponnamma by

summoning Exts.B25, B26 & B28. When Exts.B25, B26 & B28

were summoned, other parties did not have a case that other

documents were available. There could not be any dispute

regarding the identity of the person who signed on Ext.X1 Cover

as the same was done before DW2 Registrar. PW1 pleaded

ignorance whether Gouri Ponnamma appeared before the

Registrar for executing Ext.B18. There could not be any dispute

regarding the identity of the person who appeared before the

Registrar for registering Ext.B18. Section 34(3) of the

Registration Act mandates the Registrar to satisfy the identity of 2025:KER:72736

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the person. There is a presumption under Section 114(e) of the

Evidence Act that official acts have been regularly performed.

Learned Senior Counsel cited the decision of the Madras High

Court in V. Kalaivani and Others v. M.R. Elangovan and Others

[MANU/TN/4465/2024], dealing with a 'stock witness' by explaining

the term as referring to a person who is repeatedly called upon

to give evidence in several criminal cases at the instance of

police authorities. It is held that the term stock witness is not

applicable to civil proceedings, especially in testamentary

matters and that merely because the witnesses are allegedly

available at the Sub Registrar Office and they attest several

documents that are presented for registration for payment would

not in any way belittle the evidentiary value of their attestation

to the Will. Even though the Plaintiff contended in the

Replication that Gouri Ponnamma was with Defendant No.4

during the time when Ext.X5 was alleged to have been 2025:KER:72736

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executed, Defendant No.4 did not have such a case when she

was examined as DW7. Learned Senior Counsel invited my

attention to Exts.A7, A8, A9, A10, A11, A13, A15, A16, A17,

A18, B7, B8, B14, B15 & B17 to show that DW5 had been

appearing for Gouri Ponnamma for various cases and she had

a close acquaintance with DW5 to avail his service for preparing

Ext.X5 Will. In O.S.No.180/1977, though 12 acres of land at

Alamcode was included, seeking partition, the Defendant No.4

had no contention that 2.38 acres out of it belonged to her. 15

Acres 8.5 cents is included in the schedule in Ext.B3. Exts.B46

and B47 Demand promissory Notes executed by the father,

mother and defendant No.5 would prove that they availed the

loan. Exts.B10 plaint and B9 judgment in O.S.No.113/1979

instituted by the Syndicate Bank would prove an equitable

mortgage of the Jagathy house property. Ext.B9 was decreed

for Rs.3,48,415.92. In Ext.B7 Inventory in O.S.No.9/1977, the 2025:KER:72736

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liability outstanding is Rs.5,91,021/-. It shows that Defendant

No.5 had liability. Even though it is alleged that Gouri

Ponnamma had withdrawn huge amounts as per the decrees in

O.S.No.25/1974, O.P.(Arb) No.26/1971 and O.S. No.1/1975

filed by the father, there is no evidence for it. The only amount

received as per the Decree in O.S.No.25/1974 is Rs.33,45,486/-

as per Ext.B18. There is no evidence with respect to the balance

decree debt. Rs.43,55,091/- received towards the award in

O.P.(Arb) No.26/1971 is still under deposit. There is no evidence

as to what happened to O.S.No.1/1975. It is the evidence of

DW7 that Gouri Ponnamma will obtain acknowledgements for

payments to others. There are no acknowledgements proving

the alleged payments to Defendant No.5 by Gouri Ponnamma.

Exts.B19 and B23 Wills prove that the parents are looked after

by the Defendant No.5. In Ext.A34(a), the Defendant No.5 is not

nominated. The request was for permitting the Defendant No.5 2025:KER:72736

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to act as the representative of Gouri Ponnamma who was the

Trustee. Ext.A34(b) also shows that Defendant No.5 is only a

representative. Hence, the trusteeship was included in Ext.X5.

I.A. No.3/2019 is filed to accept two documents - the Death

Certificate of Venkitachalam and Copy of C.R.P. No.110/2005

challenging the Order in I.A. refusing to revoke Letters of

Administration. Learned Senior Counsel concluded his

arguments, praying to allow the appeal, setting aside the

impugned judgment and decree passed by the Trial Court and

dismissing the suit with costs.

32. I have considered the rival contentions, gone through various

precedents cited before me and perused the records of the

case.

33. Firstly, I may examine the precedents cited by both sides to cull

out the legal principles which are applicable to the case on hand.

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34. Let me start with the classic decision of the Hon'ble Supreme

Court in H. Venkatachala Iyengar (supra), which is relied on by both

sides. In the said decision, it is held that as in the case of proof

of other documents so in the case of proof of wills it would be

idle to expect proof with mathematical certainty and the test to

be applied would be the usual test of the satisfaction of the

prudent mind in such matters. It is useful to extract Paragraph

Nos.19 & 20 of the said decision.

"19. However, there is one important feature which distinguishes wills from other documents. Unlike other documents the will speaks from the death of the Testator, and so, when it is propounded or produced before a Court, the Testator who has already departed the world cannot say whether it is his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed Testator. Even so, in dealing with the proof of wills the Court will start on the same enquiry as in the case of the proof of documents. The Propounder would be called upon to show by 2025:KER:72736

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satisfactory evidence that the will was signed by the Testator, that the Testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the Testator's mind and his signature as required by law, Courts would be justified in making a finding in favour of the Propounder. In other words, the onus on the Propounder can be taken to be discharged on proof of the essential facts just indicated.

20. There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the Testator may be very shaky and doubtful and evidence in support of the Propounder's case that the signature in question is the signature of the Testator may not remove the doubt created by the appearance of the signature; the condition of the Testator's mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the Testator; the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant 2025:KER:72736

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circumstances; or, the will may otherwise indicate that the said dispositions may not be the result of the Testator's free will and mind. In such cases the Court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the Testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, Courts would be reluctant to treat the document as the last will of the Testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the Testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter."

35. Referring to inaccurate statements in the Will, the Hon'ble

Supreme Court further held in H. Venkatachala Iyengar (supra) that

the manner in which the several recitals have been made in the 2025:KER:72736

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will amounts to a suspicious circumstance which must be

satisfactorily explained by the appellant.

36. The decision of the Constitutional Bench of the Hon'ble

Supreme Court in Shashi Kumar Banerjee (supra) was cited by the

learned Senior Counsel for the appellant to substantiate the

point that minor discrepancies in the evidence of the Attesting

Witness shall not destroy the value of his evidence. Learned

Senior Counsel for the appellant and the Counsel for the

Respondent Nos.6 to 8 relied on Paragraph 5 of the said

decision, in which the cardinal principles with respect to the

proof of Will are discussed following the decision of the Hon'ble

Supreme Court on Will in H. Venkatachala Iyengar (supra). It is

advantageous to extract Paragraph 5 for better understanding.

5. The principles which govern the proving of a will are well settled; (see H. Venkatachala Iyengar v. B. N. Thimmajamma, 1959 Supp (1) SCR 426 : AIR 1959 SC 443, and Rani Purniama Devi v. Khagendra Narayan Dev, 1962 (3) SCR 195 : AIR 1962 2025:KER:72736

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SC 567). The mode of proving a will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a will by S. 63 of the Indian Succession Act. The onus of proving the will is on the Propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and the signature of the Testator as required by law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the Propounder to explain them to the satisfaction of the Court before the Court accepts the will as genuine. Where the caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same. Even where there are no such pleas but the circumstances give rise to doubts, it is for the Propounder to satisfy the conscience of the Court. The suspicious circumstances may be as to genuineness of the signature of the Testator, the condition of the Testator's mind, the dispositions made in the will being unnatural improbable or unfair in the light of relevant circumstances or there might be other indication in the will to show that the Testator's mind was not free. In such a case the Court would naturally expect that all legitimate suspicion should be completely removed before the document is accepted 2025:KER:72736

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as the last will of the Testator. If the Propounder himself takes part in the execution of the will which confers a substantial benefit on him, that is also a circumstance to be taken into account, and the Propounder is required to remove the doubts by clear and satisfactory evidence. If the Propounder succeeds in removing the suspicious circumstances the Court would grant probate, even if the will might be unnatural and might cut off wholly or in part near relations. It is in the light of these settled principles that we have to consider whether the appellants have succeeded in establishing that the will was duly executed and attested."

37. Learned Senior Counsel for the Appellant cited the decision of

the Hon'ble Supreme Court in Daulat Ram (supra), in which the

suspicious circumstance surrounding the Will pointed out was

that the Testator had thumb-marked the second Will, whereas

the earlier Will had been signed by him. The Hon'ble Supreme

Court found that the second Will executed by the Testator has

been proved to be genuine and validly executed by him, holding

that the burden to prove that the Will was forged or was obtained 2025:KER:72736

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by undue influence or by playing a fraud was on the appellants,

which they have failed to discharge.

38. Learned Senior Counsel for the Appellant cited the decision of

the Hon'ble Supreme Court in Sridevi (supra), in which it is held

that the onus to prove the Will is on the Propounder and in the

absence of suspicious circumstances surrounding the

execution of the Will, proof of testamentary capacity and proof

of the signature of the Testator, as required by law, need be

sufficient to discharge the onus; that proof in either case cannot

be mathematically precise and certain and should be one of

satisfaction of a prudent mind in such matters and that in case

the person contesting the Will alleges undue influence, fraud or

coercion, the onus will be on him to prove the same.

39. Learned Senior Counsel for the Appellant cited the decision of

the Hon'ble Supreme Court in Pentakota Satyanarayana (supra), in

which the Hon'ble Supreme Court held that the evidence 2025:KER:72736

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adduced by the appellant Propounder is sufficient to satisfy the

conscience of the court of law that the Will was duly executed

by the Testator finding that no evidence has been led in by the

respondents to show the exercise of any fraud or undue

influence at the time of execution of the Will and no evidence

was adduced to show that the Testator was not in sound state

of mind.

40. Learned Senior Counsel for the Appellant cited the decision of

the Hon'ble Supreme Court in B. Venkatamuni (supra), in which it

is held that while arriving at a finding as to whether the Will was

duly executed, the Court must satisfy its conscience having

regard to the totality of the circumstances of the particular case.

41. Learned Senior Counsel for the Appellant cited the decision of

the Hon'ble Supreme Court in Meena Pradhan (supra) to

substantiate the legal propositions that Will is not required to be

proved with mathematical accuracy, but the test of satisfaction 2025:KER:72736

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of the prudent mind has to be applied and that suspicious

circumstances must be 'real, germane and valid' and not merely

'the fantasy of the doubting mind' and that whether a particular

feature would qualify as 'suspicious' would depend on the facts

and circumstances of each case.

42. Learned Senior Counsel for the Appellant cited the decision of

this Court in Kallangadi Edathil Chathan Veettil Kumaran Kidavu

(supra), in which this Court dealt with the sealed cover procedure

for the deposit of a closed Will. This Court held that there is no

prescription that the Registrar should initial on the outer side of

the sealed cover in which Will is enclosed for deposit nor of

affixing the seal of the Registrar on such cover; that the Courts

below have wrongly taken the absence of initial and also seal of

Registrar on the outer cover as one among the circumstances

to doubt the genuineness of the Will and that the mandate under

Section 43 of the Registration Act noted above is that the 2025:KER:72736

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Registrar should satisfy that the person presenting the same for

deposit is the Testator or his/her agent. It is also held that if the

contesting parties had any case that the thumb impression and

also the signature appearing on in the sealed cover is not that

of Testator, they should have taken steps to substantiate the

challenge.

43. Learned Senior Counsel for the Respondent No.1 cited the

decision of this Court in Ramachandran S. (supra) in which this

Court considered the effect of leading questions and held that

leading questions in re - examination should not have been

allowed; that the inference is that if leading questions had not

been put, the witness would not have given the same answers;

that in such case, the evidence is not voluntary; that bringing

out material facts by asking leading questions in the

examination in chief is suicidal and it is self goal; and that the 2025:KER:72736

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answers given in answer to the leading questions put in the

examination in chief are liable to be discarded.

44. In the decision of the Hon'ble Supreme Court in Kavita Kanwar

(supra) cited by the Learned Senior Counsel for the Respondent

No.1, following the classic decision of the Hon'ble Supreme

Court on Will in H. Venkatachala Iyengar (supra), it is held that an

unfair disposition of property or an unjust exclusion of legal

heirs, particularly the dependants, is regarded as a suspicious

circumstance; that an individual factor may not be decisive but,

if after taking all factors together, conscience of Court is not

satisfied that Will in question truly represents last wish and

propositions of the Testator, Will cannot get the approval of

Court; that when Will is surrounded by suspicious

circumstances, Court would expect that legitimate suspicion

should be removed before document in question is accepted as

the last Will of the Testator.

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45. Learned Senior Counsel for the Respondent No.1 cited the Full

Bench decision of this Court in Meenachil Panchayat (supra) to

substantiate the point that Bonds produced as security in Court

are part of the judicial proceedings and hence not liable to be

registered.

46. In Rani Purnima Debi (supra) cited by the learned Counsel for the

Respondent Nos.4 & 5, the Hon'ble Supreme Court held that if

a Will has been registered, that is a circumstance which may,

having regard to the circumstances, prove its genuineness,

but the mere fact that a will is registered Will not by itself be

sufficient to dispel all suspicion regarding it where suspicion

exists, without submitting the evidence of registration to a close

examination; that registration may take place without the

executant really knowing what he was registering; that when

signature of Testator not appearing to be his usual signature and

the Testator was in habit of signing blank papers, the 2025:KER:72736

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Propounder is to satisfactorily explain suspicious circumstances

before he could get letters of administration.

47. In SMT Jaswant Kaur (supra) cited by the learned Counsel for the

Respondent Nos.4 & 5, the Hon'ble Supreme Court held that

when execution of the Will is shrouded in suspicion, its proof

ceases to be a simple lis between the plaintiff and the

defendant; that it is impossible to reach the satisfaction of the

Court unless the party which sets up the Will offers a cogent and

convincing explanation of the suspicious circumstances

surrounding the making of the Will.

48. In Ram Piari (supra) cited by the learned Counsel for the

Respondent Nos.4 & 5, after referring to the ratio in Malkani v.

Jamadar [AIR 1987 SC 767], it is held that omission to mention

reason for disinheriting the daughter or taking prominent part by

beneficiary by itself was not sufficient to create any doubt about

the testamentary capacity, but the Hon'ble Supreme Court 2025:KER:72736

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observed that even though it cannot be said to be hard and fast

rule yet when disinheritance is amongst heirs of equal degree

and no reason for exclusion is disclosed, then the standard of

scrutiny is not the same.

49. In Varkey Joseph (supra) cited by the learned Counsel for the

Respondent Nos.4 & 5, the Hon'ble Supreme Court held that

leading question to be one which indicates to the witnesses the

real or supposed fact which the prosecutor (plaintiff) expects

and desires to have confirmed by the answer; that leading

question may be used to prepare to give the answers to the

questions about to be put to him for the purpose of identification

or to lead him to the main evidence or fact in dispute; that the

attention of the witness cannot be directed in chief examination

to the subject of the enquiry/trial; that the Court may permit

leading question to draw the attention of the witness which

cannot otherwise be called to the matter under enquiry, trial or 2025:KER:72736

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investigation; and that the discretion of the court must only be

controlled towards that end but a question which suggest to the

witness, the answer the prosecutor expects must not be allowed

unless the witness, with the permission of the court, is declared

hostile and cross examination is directed thereafter in that

behalf.

50. In Janki Narayan Bhoir (supra) cited by the learned Counsel for the

Respondent Nos.4 & 5, the Hon'ble Supreme Court held that

Section 71 of the Indian Evidence Act has no application to a

case where one attesting witness, who alone has been

summoned, has failed to prove the execution of the Will and

other attesting witnesses though are available to prove the

execution of the same, for the reasons best known, have not

been summoned before the Court; that it is clear from the

language of Section 71 that if an attesting witness denies or

does not recollect execution of the document, its execution may 2025:KER:72736

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be proved by other evidence; that in a case where an attesting

witness examined fails to prove the due execution of will as

required under Clause (c) of Section 63 of the Succession Act,

it cannot be said that the Will is proved as per Section 68 of the

Evidence Act; that it cannot be said that if one attesting witness

denies or does not recollect the execution of the document, the

execution of Will can be proved by other evidence dispensing

with the evidence of other attesting witnesses though available

to be examined to prove the execution of the Will.

51. The learned Counsel for the Respondent Nos.4 & 5 cited the

decision of the Hon'ble Supreme Court in Chinu Rani Gosh (supra)

to substantiate the point that when the evidence of the

Propounder lacks material particulars so as to conclude that

there is proof of the Will in accordance with law, it is to be held

that the very execution of the Will is surrounded by suspicious

circumstances which have not been erased by the Propounder.

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52. In Karunakaran (supra) cited by the learned Counsel for the

Respondent Nos.4 & 5, this Court followed the decision of the

Patna High Court Chandrashwar v. Bisheshwar (AIR 1927 Patna 61)

and held that the credit of a witness may be impeached as

provided under Section 155 of the Evidence Act; that the fact

that a witness was not believed in a judgment in another case

cannot be used against him in a subsequent case; that the

former judgment cannot be given in evidence for the purpose of

impeaching the credit of a witness; and that as the judgments in

other cases are relevant only under Sections 40 to 43 of the

Evidence Act the credit of a witness cannot be impeached by

confronting him with a judgment in another case.

53. Let me examine the facts of the case in the light of the legal

principles enunciated by the Hon'ble Supreme Court and this

Court in the aforesaid decisions. Every case has got its own

unique facts and circumstances. The general principles cannot 2025:KER:72736

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be applied uniformly to all cases having different facts and

circumstances. Court has to approach the factual situation in

each case keeping in mind principles of law for adjudication of

the dispute.

54. In this suit for partition of the properties belonging to mother

Gouri Ponnamma, the Defendant No.5 alone contested. The

only defence is on the strength of Ext.X5 Will, the Certified copy

of which is marked as Ext.B1. He is the Propounder of the Will,

and other parties to the suit are the Contesters of the Will. The

Defendant No.5 produced Ext.B1 copy of the will on 15.12.1994

along with his Counter Affidavit in I.A.No.5737/1994 filed by the

plaintiff seeking temporary injunction. There is no quarrel with

respect to the fact that the Plaint schedule properties belonged

to Gouri Ponnamma at the time of death.

55. Let me state certain admitted facts: The parents of the Plaintiffs

and the Defendants did not have even a formal education.

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N. Chellappan started his life as a Helper to Mason in the year

1940, later became a Mason and then became a Contractor in

the year 1950. Gouri Ponnamma was a housewife.

N. Chellappan undertook several heavy contract works and

amassed huge wealth. He had occasional financial setbacks.

The Plaintiff No.2 is the eldest son. He became a Civil Engineer

and joined the PWD of the State. Later, he resigned from his job

and joined with contract work of father. Subsequently, he started

an independent contract business. The Plaintiff No.1 is the

second son. He joined with the business of the father initially.

Later, he became an Electrical Engineer and went to the USA

and settled there. The Defendant No.2 is the third son who

became a Medical partitioner and who started N.C. Hospital at

Jagathy, Thiruvananthapuram. The Defendant No.3 is the fourth

child and the elder daughter who married a Medical practitioner

and settled in the USA. The Defendant No.4 is the fifth child 2025:KER:72736

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and the younger daughter who also married a Medical

practitioner after graduation. The Defendant No.5 is the sixth

child and the youngest son who passed only Matriculation. In

the year 1976, he became a partner of N.C. and Company,

established by his father, as revealed from Ext.A24.

Immediately after the death of the father, N.C. and Company

was reconstituted with the Defendant No.5 and the mother as

partners as per Ext.A25 and the same continued till the death of

the mother. All the properties were acquired by the father and

the mother out of the income from the contract works. Father

executed his first Will as Ext.A20/B32 dated 10.05.1973

distributing some of the assets to the children as per Schedules

A to F therein. Father executed Ext.B23 Will dated 20.06.1975

with respect to F Schedule in Ext.A20 in favour of the Defendant

No.5 alone. Father executed Exts.B29 and B30 Settlement

Deeds in favour of Plaintiff Nos.2 and 1 respectively on 2025:KER:72736

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01.12.1975. Mother executed Ext.B26 Settlement Deed dated

31.03.1975 in favour of the Defendant No.3 and Exts.B25 & B28

Settlement Deeds dated 07.04.1975 in favour of the Defendants

Nos.4 & 2 respectively. No property was settled in favour of the

Defendant No.5. But he was made a partner of N.C. and

Company along with the father, with effect from 02.03.1976, as

revealed from Ext.A24. Father executed Ext.B19 Will dated

10.08.1976 bequeathing his remaining properties to the mother.

Probate is granted to Ext.B19 Will as per Ext.B2 judgment dated

30.06.1981 in O.S.No.9/1977. The Plaint A Schedule

Properties are the immovable properties included in Ext.B19

Will.

56. When a Will is challenged in Court, the Court has to ensure the

testamentary capacity of the Testator, proof of execution and

attestation of the Will and non-existence of any of the vitiating

elements. The Court has to ensure the non-existence of any of 2025:KER:72736

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the vitiating elements in order to come to the conclusion that the

Testator executed the Will of his free will and consent. The

Hon'ble Supreme Court in H. Venkatachala Iyengar (supra)

categorically held that if the exercise of undue influence, fraud

or coercion is alleged in respect of the execution of the Will

propounded, such pleas may have to be proved by the parties

making such allegations. If there are legitimate suspicious

circumstances surrounding the execution of the Will, it is the

burden of the Propounder to remove the same completely. As

held by the Hon'ble Supreme Court in the decision in Meena

Pradhan (supra), Will is not required to be proved with

mathematical accuracy, but the test of satisfaction of the prudent

mind has to be applied and that suspicious circumstances must

be 'real, germane and valid' and not merely 'the fantasy of the

doubting mind' and that whether a particular feature would

qualify as 'suspicious' would depend on the facts and 2025:KER:72736

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circumstances of each case. It is well settled that any and every

circumstance is not a "suspicious" circumstance.

A circumstance would be "suspicious" when it is not normal or

is not normally expected in a normal situation or is not expected

of a normal person. The Hon'ble Supreme Court held in P.P.K.

Gopalan Nambiar v. P.P.K. Balakrishnan Nambiar and Ors.[1995 Supp (2)

SCC 664], it is the duty of the Propounder of the Will to remove

all the suspected features, but there must be real, germane and

valid suspicious features and not fantasy of the doubting mind.

57. The Defendant No.2 alone contended a lack of testamentary

capacity for the Testator at the time of Ext.X5 Will. It is seen that

such contention was not prosecuted. All the Counsel for

contesting respondents submitted that the respondents do not

dispute the testamentary capacity of Gouri Ponnamma. Ext.X5

Will is dated 30.10.1982 and Gouri Ponnamma died on

01.11.1994. After the date of Ext.X5, admittedly, Gouri 2025:KER:72736

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Ponnamma has executed several documents and pleadings.

Hence, the question of the lack of testamentary capacity of

Gouri Ponnamma does not arise for consideration in this case.

58. The question of the existence of any of the vitiating elements

arises only if the execution of the Will by the Testator is proved.

Though the Defendant Nos.1, 2 and 4 pleaded the existence of

vitiating elements, the material particulars in support of the

same are not pleaded. No evidence in this regard was adduced.

In view of this, I find that they are not serious with respect to the

contention regarding the existence of vitiating elements. Hence,

the question of the existence of any of the vitiating elements

does not arise for consideration even if the execution of the Will

by the Testator is proved.

59. The remaining question to be considered is proof of the

execution and attestation of Ext.X5 Will. Since Ext.X5 Will is a

closed Will deposited with the Registrar, the proof of deposit is 2025:KER:72736

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also a matter to be proved for proving the execution of Ext.X5

Will.

60. The contention of the learned Senior Counsel for the Appellant

is that the Contesters to the Will do not have a consistent case

regarding the execution of Ext.X5 Will. It is seen from the Written

Statements of Defendants Nos.1 to 4 and the Replication of the

Plaintiff that all of them denied execution of Ext.X5 Will by Gouri

Ponnamma. All of them alleged forgery and impersonation.

Even if there is no contention in this regard, it is the duty of the

Defendant No.5, who is the Propounder of Ext.X5 Will, to prove

the execution of the Will as required under Section 63 of the

Indian Succession Act, 1925 read with Section 67 of the

Bharatiya Sakshya Adhiniyam, 2023 corresponding to Section

68 of the Indian Evidence Act, 1872. The contention of the

learned Senior Counsel for the Appellant is that none of the

suspicious circumstances are pleaded or proved by the 2025:KER:72736

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Contesters, and hence, there are no suspicious circumstances

surrounding the execution of the Will. I am unable to accept the

said contention. There is no requirement in law that suspicious

circumstances are matters to be pleaded. It is for the parties

challenging the Will who have to make out suspicious

circumstances from the facts and circumstances of the Will.

Suspicious circumstances could be made out even from the

documents or from cross-examination of the Propounder or his

witnesses, even without any evidence from the Contesters. The

Court may infer suspicious circumstances on its own from the

facts and circumstances presented before it. My view is fortified

with the decision of the Constitutional Bench of the Hon'ble

Supreme Court in Shashi Kumar Banerjee (supra), in which it is held

that even where there are no such pleas but the circumstances

give rise to doubts, it is for the Propounder to satisfy the

conscience of the Court. An individual factor may not be 2025:KER:72736

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decisive. Conscience of the Court is to be satisfied after taking

all factors together. The Court must satisfy its conscience,

having regard to the totality of the circumstances of the

particular case. Since the acceptance of a Will is a matter of

the judicial conscience, the question to be considered by the

Court is whether the evidence led by the Propounder of the Will

is such as to satisfy the conscience of the Court that the Will

was duly executed by the Testator.

61. Let me examine whether the execution of the Ext.X5 by Gouri

Ponnamma is proved by the Propounder. Ext.X5 contains only

the signatures of Gouri Ponnamma and not the thumb

impressions of Gouri Ponnamma. Ext.X1 Cover is used for the

deposit of Ext.X5 Will, and Ext.X3 Register contains both

signature and thumb impressions. Signatures in Ext.X1 and X3

do not contain the name of Gouri Ponnamma in Malayalam. In

all other admitted signatures of Gouri Ponnamma, including the 2025:KER:72736

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signatures in Ext.X5, the name of Gouri Ponnamma in

Malayalam is an integral part of her signature. The signature

marks 'GP' in Ext.X1 and X3 have a glaring difference from the

signature marks 'GP' which is part of the admitted signatures of

Gouri Ponnamma. The difference is so apparent that it is visible

even to the naked eye and nobody would be able to say that the

signature marks 'GP' in Exts.X1 and X3 is put by Gouri

Ponnamma when compared to the admitted signatures of Gouri

Ponnamma. DW5, who was a Senior Lawyer of

Thiruvananthapuram Bar, who scribed Ext.X5, admitted that the

signature of Gouri Ponnamma contains her name in Malayalam

and that he has not seen her sign without her name. When this

creates strong suspicion as to the authorship of the signature

marks in Exts.X1 and X3, no attempt was made by the

Propounder to prove the signatures in Exts.X1, X3 and X5 with

the help of a Hand-Writing Expert. It leads to the conclusion that 2025:KER:72736

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the signature marks in Ext.X1 and X3 were put by a person other

than Gouri Ponnamma. The Hon'ble Supreme Court in

H. Venkatachala Iyengar (supra) held that when the alleged

signature of the Testator may be very shaky and doubtful, the

evidence in support of the Propounder's case that the signature

in question is the signature of the Testator may not remove the

doubt created by the appearance of the signature. The thumb

impressions in Exts.X1 and X3 could be affixed only by the

person who had signed those documents. It could not belong to

Gouri Ponnamma. Though the learned Senior Counsel for the

Respondent No.1 contended that Ext.B18 Bond does not

require registration and it was registered unnecessarily with

fraudulent intention to use the same for comparison, I am of the

view that the said contention is unsustainable as the Full Bench

decision of this Court in R.M. Palat (supra) was prevailing as on

the date of execution of Ext.B18 declared that Security Bonds 2025:KER:72736

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given in judicial proceedings have to be registered where the

principal money secured is one hundred rupees or upwards in

order to affect any immovable property comprised therein and

as the later Full Bench decision of this Court in Meenachil

Panchayat (supra) holding that Security Bonds given in judicial

proceedings do not require registration came only subsequent

to the execution of Ext.B18. But the Witnesses to Ext.B18 are

the close relatives of the Defendant No.5, namely, his wife and

co-brother, who was examined as DW9 after remand. The

Propounder as DW8 even went to the extent of deposing that

he can say as to who were the identifying witnesses in Ext.B18

only after verifying it, when they are his wife and co-brother.

DW8 pleaded ignorance of the amount received as per Ext.B18.

It would show that he was not disclosing the true facts before

the Court. DW9 is an interested witness. The answer that DW9

had seen Gouri Ponnamma affixing thumb impression was 2025:KER:72736

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obtained by putting a leading question to him. There is no

evidentiary value for such an answer to the leading question.

After remand, the Propounder proved that the thumb

impressions in Exts.X1 and X3 and the thumb impression in

Ext.B18 Bond were made by the same person as per Ext.X10

Report of the Expert who was examined as DW10. But that

would not prove that all these thumb impressions belonged to

Gouri Ponnamma. In Ext.B18, though the two signatures on the

reverse of the first page made at the time of registration of the

same contain the name of Gouri Ponnamma in Malayalam,

there also, the difference is so apparent and glaring that it is

visible even to the naked eye and nobody would be able to say

that the signature in Ext.B18 is put by Gouri Ponnamma when

compared to the admitted signature of Gouri Ponnamma. If that

be so, the thumb impression in Ext.B18 is also not put by Gouri

Ponnamma. The Propounder selected Ext.B18 alone for the 2025:KER:72736

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sample thumb impression of Gouri Ponnamma, when the

admitted thumb impressions of Gouri Ponnamma were

available in Exts.B34 to B36 Documents. As contended by the

Counsel for the respondents, a proved or admitted sample

alone is permissible for comparison under Section 45 of the

Indian Evidence Act in view of Illustration 'C' therein. Ext.B18

does not contain a proved or admitted sample thumb impression

of Gouri Ponnamma. The Propounder could have summoned

the original of Exts.B34 to B36 Documents. I find considerable

force in the contention of the counsel for the respondents that

the Propounder purposefully sought production of Exts.B25,

B26 and B28 for comparison of Thumb impression of Gouri

Ponnamma fully knowing that those documents do not contain

the thumb impression of Gouri Ponnamma, to create an

impression that all his attempts to obtain the thumb impression

of Gouri Ponnamma other than contained in Ext.B18 were 2025:KER:72736

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failed. The Propounder filed I.A.No.1615/2016 to keep Ext.B18

under safe custody. It would show his over-concern over

Ext.B18 to send it as a sample for thumb impression when he

was able to procure other documents having the thumb

impressions of Gouri Ponnamma. I am of the view that thumb

impressions in Exts.X1, X3 and B18 do not belong to Gouri

Ponnamma with all probability. It is clear that the deposit of

Ext.X5 Will is not made by Gouri Ponnamma. Though there are

two witnesses in Ext.X1 for the deposit of Ext.X1, nobody was

examined to prove the deposit. The learned Senior Counsel for

the Appellant relied on the evidence of DW2, District Registrar,

to prove the deposit of Ext.X1 Cover. The evidence of DW2 that

the Cover was deposited by Gouri Ponnamma was obtained by

putting a leading question. DW2 had no case that Gouri

Ponnamma was personally known to him. DW2 stated that the

identity of Gouri Ponnamma was satisfied. During the year 2025:KER:72736

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1982, there was no means for the Registrar to confirm the

identity of the person with reference to any Identity Card. The

Registrar could have only relied on the identification made by

the Witness before him. DW2 admitted that the identity is

confirmed by the Witnesses. DW2 could not recollect the details

of the appearance of the person who deposited Ext.X1. In such

circumstances, the evidence of DW2 alone is not sufficient to

prove the identity of the person who deposited Ext.X1 Cover.

The Propounder ought to have examined the Witnesses in the

Ext.X1 Cover to prove the deposit. Of course, the mere

production of Ext.A1 complaint against DW2 is not sufficient to

doubt his character. But why the deposit was made on a day

when DW2 acted as a Registrar in charge is also doubtful in the

facts and circumstances of the case. I find that the Propounder

has not proved the deposit of Ext.X1 Cover by Gouri Ponnamma

before the Registrar.

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62. DW4 and DW5 deposed that Ext.X1 Cover was tied with twine

lengthwise and widthwise before deposit, whereas the evidence

of DW8 is that Ext.X1 Cover was not tied with twine. DW2

deposed that it was sealed with 'araku' and does not say about

any twine. DW8 pleaded ignorance of the existence of twine on

the Ext.X1 Cover at the time of opening. On a perusal of Ext.X1

Cover, 'araku' seals with 'NC' impression are there. There is no

sign that it was tied with twine. If the Ext.X1 Cover was tied with

twine lengthwise and widthwise, the impression of the twine

would have been there on the seals. Such impressions are

absent. Even assuming that a Cover was sealed at Jagathy

House as deposed by DW4 and DW5, it was not the said Cover

which was deposited with the Registrar. This material

contradiction also creates suspicion.

63. Let me then examine Ext.X5. Ext.X5 is written on a foolscap

paper. It is not having a standard size. It is not a good quality 2025:KER:72736

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paper. A scissor cut on the top of the paper is apparent. Scissor

cut on the top of the paper is admitted by DW5 Scribe. DW5

deposed that the Paper is provided by Gouri Ponnamma. He

could not offer an explanation for the same. DW5 stated that the

scissor cut might have been done by Gouri Ponnamma. It is

hard to believe that Gouri Ponnamma decided to write such an

important document in her life by choosing such inferior-quality

paper. It is hard to believe that Gouri Ponnamma provided the

paper for writing the Will to the Scribe, who is a Senior lawyer.

It may create a strong suspicion that Ext.X5 Will is created on a

paper signed blank by Gouri Ponnamma for using it for some

other purpose. It is in evidence that Gouri Ponnamma used to

give blank signed papers for preparing pleadings in the pending

litigations. DW5 deposed that Ext.X5 Will is prepared as

dictated by Gouri Ponnamma. It is hard to believe that Gouri

Ponnamma, who was an illiterate lady, dictated the terms of the 2025:KER:72736

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Will to DW5, who was a Senior Lawyer, and DW5 prepared it as

dictated by Gouri Ponnamma. These factors create suspicion

with respect to the creation of Ext.X5.

64. DW4 is cited as one of the attesting witnesses to Ext.X5. She

claimed that she was a close friend of Gouri Ponnamma. DW5

and DW8 deposed that DW4 was a close friend of Gouri

Ponnamma. Several material answers in the chief examination

are obtained from DW4 by putting leading questions. DW4

deposed that she and her husband have known Gouri

Ponnamma since the year 1963; that she got first acquainted

with Gouri Ponnamma at Shanghumugham temple. Though she

claimed she got acquainted with several persons in the temple,

she could not tell their names and addresses. She could not tell

about the various Poojas in the said temple, though she claimed

to be a regular visitor therein. She deposed that she does not

know the children of Gouri Ponnamma, their names and when 2025:KER:72736

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their marriage was. Though she claimed that she had seen

Gouri Ponnamma during the period 1963 to 1969, she pleaded

ignorance to the suggestion that from 1963 to 1965 Gouri

Ponnamma and Chellappan had been residing at Kuttiyadi in

Kozhikode. Though she claimed she had gone to the house of

Gouri Ponnamma several times after 1975, she admitted that

she could not state the purposes of the visits. She was unable

to state the distance from the Shanghumugham temple to the

house of Gouri Ponnamma. Though she stated that the house

is on the roadside, she could not state the name of the road or

the direction of the front of the house or any of the

establishments near the house. She could state the details of

the house. She does not even know the place of death of Gouri

Ponnamma. She did not go on the death of Gouri Ponnamma.

She stated that she was called for attestation since Gouri

Ponnamma was particular that the witness should be a person 2025:KER:72736

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unknown to the children. Later, she said that the Propounder is

known to her as he was introduced by Gouri Ponnamma and

that she has an acquaintance with the wife of the Propounder.

At one stage, she stated her husband does not know DW5, and

at another stage, she stated that DW5 was introduced to her by

her husband on the date of Ext.X5. The evidence of DW4 would

prove that she did not have any kind of acquaintance with Gouri

Ponnamma.

65. DW4 admitted that she is unable to identify the signature of

Gouri Ponnamma or part of her signature without the name

under it. She does not know whether the signature is in English

or Malayalam. Though DW4 claimed that she and her husband

accompanied Gouri Ponnamma to the District Registrar's

Office, she admitted that she did not witness Gouri Ponnamma

putting her signature before the Registrar and that she had

witnessed Gouri Ponnamma putting her signature only in the 2025:KER:72736

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Will. She deposed that the attestation endorsement was not

written by her and it is written by DW5. But DW5 deposed that

attestation endorsements are written by the husband of DW4

and DW4, respectively. DW4 even deposed that when Gouri

Ponnamma signed the Document, it had the name and

signature of DW4 and the signature of her husband. This

evidence would prove that the Witnesses have not attested

signature of Gouri Ponnamma. The evidence of DW4 is far from

satisfactory to prove the execution of Ext.X5 by Gouri

Ponnamma.

66. The evidence of DW4 would show that she had a close

acquaintance with the Propounder earlier. She deposed that

she does not know retired Chief Engineer, Ramalingam Nadar;

that she does not know whether he had given any help to her

case; that she does not know whether her husband knows him;

that she does not know whether he had come to her house and 2025:KER:72736

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inspected the properties; and that she does not know whether

he was the Consulting Engineer of N.C. and Company. Then

she admits that a Report is given by Ramalingam Nadar; that

Engineer by name Purushothaman had inspected her house

and premises; that she does not know how the Plan prepared

by Engineer Purushothaman was produced in the High Court

for her in S.A. No.264/1981 with the signature of Ramalingam

Nadar and that she does not know whether the Propounder was

the Managing Partner of N.C. and Company. The evidence of

PW1 and DW7 would prove that Ramalingam Nadar was

associated with N.C. and Company during the period the father

was the Managing partner and after the death of the father.

These evidence of DW4 would highly probabilize that the

Propounder had extended undue help to DW4 to produce a

false Report in her case in the High Court through his employee 2025:KER:72736

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and that she had a close acquaintance with the Propounder

earlier.

67. DW4 deposed that all the arrangements, including paper, pen

and the documents required for preparing the Will, were made

ready when they reached there. She deposed that after verifying

the numbers from the documents, Gouri Ponnamma was telling

it to DW5. DW4 deposed that the details regarding the

conditions, amounts and properties, etc., were told to DW5 by

Gouri Ponnamma and DW5 prepared the draft; that it was read

out to Gouri Ponnamma; that Gouri Ponnamma instructed to

write the original; that DW5 prepared the original and read it out

to Gouri Ponnamma; that thereafter Gouri Ponnamma read and

understood the same and signed it. It is difficult to believe that

illiterate Gouri Ponnamma went through the documents and

instructed the conditions to be incorporated in the Will and she 2025:KER:72736

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read and understood the recitals in the original Will prepared by

DW5.

68. The other attesting Witness is the husband of DW4. The

evidence of DW4 would indicate that he did not have any

physical incapacity to give evidence. The evidence of DW4 and

DW5 would show that the evidence of the husband of DW4 is

more material to prove the execution of Exts.X1, X3 and X5,

especially when he is the witness on Ext.X1 Cover also. The

non-examination of the other attesting witness of Ext.X5 also

creates suspicion.

69. Ext.X5 Will was executed on 30.10.1982 when Gouri

Ponnamma was aged only 61 years and Gouri Ponnamma died

on 01.11.1994. At the time of the execution of Ext.X5, Gouri

Ponnamma was perfectly healthy and death was not in her

contemplation. Ext.X5 includes all her assets. The conduct in 2025:KER:72736

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executing Ext.X5 seems abnormal when it is considered along

with other suspicious circumstances.

70. The contention of the Propounder is that the reason for

executing Ext.X5 Will by Gouri Ponnamma in favour of the

Propounder was that he was not given assets equivalent to the

assets given to the other children by the parents and that the

only property given to the Propounder as per Ext.B20 is

overburdened with liabilities. Father gave assets to all the

children as per Ext.B20 Will scheduling as 'A' to 'F' therein.

Thereafter, father executed Ext.B23 with respect to the 'F'

Schedule in Ext.B20 in favour of the Propounder. It is true that

while father and mother executed Exts.B25, B26, B28, B29 and

B30 Settlement Deeds during the year 1975, no property was

settled in favour of the Propounder. But the Propounder alone

among the children was made a partner of the prestigious N.C.

and Company along with the father, with effect from 02.03.1976, 2025:KER:72736

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as revealed from Ext.A24. As DW8, the Propounder admitted

that there were plant and machinery worth lakhs of Rupees in

the name of the father and the Propounder, and vehicles in the

name of the Propounder; and that on the death of the father, all

came into the control of the Propounder and mother. Even

though it is contended that there were liabilities, he refused to

produce any documents for the same. Though he deposed that

he had produced documents, no documents are seen produced

to prove any liability on the said property given to the

Propounder. In Ext.B2 judgment in O.S.No.2/1978 and

O.S.No.9/1977 in which the challenge against Ext.B19 Will was

involved, it is seen that the Propounder, who was the Defendant

No.6 in O.S.No.2/1978, supported the Defendant No.1

therein/mother who contended that Ext.B19 was executed with

the intention to provide her whatever that is left after providing

for the children sumptuously. In the Ext.B4 Appellate Court 2025:KER:72736

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judgment, it is found that all the children were given a sufficient

number of properties and Ext.B19 takes only small items of

property. In view of the contention of the Propounder in the

aforesaid suits and the findings in Exts.B2 and B4 judgments,

the Propounder could not contend that he was not given assets

equivalent to the assets given to the other children by the

parents. DW8 pleaded ignorance to the suggestion that, as per

Ext.B20, property worth several manifolds when compared to

those given to others, was given to him and deposed that he is

not ready for an exchange as the mother was buried there. To

the suggestion to DW8 that the mother will not give further

assets to him since he received a larger part of the properties,

he answered that the mother did not give any property. It is in

evidence that the father did not give properties to all children

and the mother did not give properties to all children and that

they provided the properties standing in their name as per a 2025:KER:72736

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mutual decision to each to the children for equal distribution of

assets. That apart, PW1 specifically deposed that the father had

purchased quarry property of 2.06 acres in the name of the wife

of the Defendant No.5 and the same was not disputed by the

Defendant No.5. Even though the Propounder contended that

the property given to him was overburdened with liabilities, he

did not produce any evidence to support his contention. The

Defendant No.5 in his Written Statement admitted that his father

had received compensation from the Compensation Tribunal in

O.S. No.1/1975. DW8 has stated in the Proof Affidavit that an

amount Rs.75 lakhs was demanded by Income Tax Authorities

after the death of the father for the amounts received by the

father in Government contracts. DW8 pleaded ignorance to the

suggestion that the financial problems of the father were over

after the favourable decision of the Supreme Court in the

Kuttiyadi case on 21.11.1974. DW8 admitted that the father had 2025:KER:72736

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settled the liabilities using the huge amounts received as per the

Court Decree in 1974. Hence, there is no evidence before the

Court to hold that as on the date of execution of Ext.X5, there

was liability over the property given to the propounder having an

extent of 49 cents at Shanghumugham and a palatial residential

building having approximately 10000 Sq. Ft. therein. The decree

amount in the Ext.B9 judgment in O.S.No.113/1979 filed by the

Syndicate Bank was only Rs.3,48,415.92. Even assuming that

there was a liability of Rs.3,48,415.92 at the time of execution

of Ext.X5, the said amount is only negligible when compared to

the value of Jagathy House or to the amounts receivable under

the three suits filed by the father. The reasons for executing

Ext.X5 by Gouri Ponnamma in favour of the Propounder

contended by the Propounder are unbelievable.

71. Several reasons are stated in Ext.X5 for executing the same,

namely - Only the Propounder supported and consoled Gouri 2025:KER:72736

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Ponnamma after death of her husband; Gouri Ponnamma has

more faith and confidence over the Propounder; No asset as

given by Gouri Ponnamma to the Propounder; The assets given

by father is overburdened with huge liabilities; All children

except the Propounder were given valuable properties which

are sufficient for their well-being; and The Propounder has no

income and he has heavy liabilities. Though the Propounder

contended that other children were not on good terms with Gouri

Ponnamma, there is no evidence for that. There is no evidence

that the Propounder alone supported and consoled Gouri

Ponnamma after the death of her husband. As DW8, he

admitted that the marriage engagement of the daughter of the

Defendant No.4 was conducted at Jagathy House and he

pleaded ignorance that the daughter of the Defendant No.1 was

'Kalathilakam' and all the arrangements for dance were

conducted at Jagathy House. Even though DW8 deposed that 2025:KER:72736

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Gouri Ponnamma had submitted a complaint to the Police for

the harassment by the children, he could not give any of the

details with respect to the same. Even though the Propounder

contended that O.S. No.164/1976 was filed by the Plaintiff No.1

against the father claiming oral partnership of Kuttiyadi Project,

he pleaded ignorance to the suggestion that it was filed after

discussing with the father. It is true that no asset was given by

Gouri Ponnamma to the Propounder. But the Wills and

Settlement Deeds executed by the father and mother with

respect to their respective properties in favour of each of the

children would prove that the father and mother wanted equal

distribution of their assets among the children. I have already

found that there is no proof regarding the liability over the

property given to the propounder at the time of execution of

Ext.X5. Even though it is claimed that the Propounder has no

income and that he has heavy liabilities, there is no evidence for 2025:KER:72736

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the same. He was the partner of N.C. and Company along with

his mother. Even though the learned Senior Counsel for the

Appellant contended that there is no evidence that Gouri

Ponnamma had received any amount which were due to the

father as per Court decrees in O.S.No.25/1974, O.P.(Arb)

No.26/1971 and O.S. No.1/1975 filed by the father, I am of the

view that the evidence probabilizes that Gouri Ponnamma had

received huge amounts. Counsel on both sides admit that

Rs.43,55,091/- received towards the award in O.P.(Arb)

No.26/1971 is still under deposit. The receipt of Rs.33,45,486/-

as per Ext.B18 as per the Decree in O.S. No.25/1974 is

admitted. It is true that there is no evidence with respect to the

balance decree debt in O.S. No.25/1974 and there is no

evidence as to what happened to O.S.No.1/1975. But the

Defendant No.5 had been residing with the mother. He must

have knowledge about the balance decree debt in 2025:KER:72736

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O.S. No.25/1974 and the realisation of the decree debt in

O.S. No.1/1975. He is not disclosing the status of those cases

to the Court. Nobody will abandon the realisation of the huge

amounts due under the decrees in those suits. The Defendant

No.5 has no case that any other party to the suit has realised or

received the said amount. In such a case, the only probability is

that all the amounts covered by the said Decrees had been

received by Gouri Ponnamma. This finding is supported by the

evidence of DW5 and DW8. In cross-examination, DW8

admitted that the amount awarded in the Arbitration case was

received by Gouri Ponnamma and the Propounder after the

death of the father and the income tax was paid with respect to

the same. PW1 deposed that on receipt of Income Tax Notice in

the year 1995, it is understood that an amount of Rs.130 lakhs

was withdrawn. This evidence is not cross-examined by the

Propounder. The Propounder in his Written Statement admitted 2025:KER:72736

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that Gouri Ponnamma realised the entire amount due under the

Decree in O.S. No.25/1974. DW5 did not specifically deny the

question of whether the decree amount was more than

Rs.77 Lakhs. DW5 admitted that he had entrusted the cheques

received from the Court to Gouri Ponnamma. DW8 admitted

that it is DW5 who received cheques from the Court in the case

with KSEB. Though it is suggested to DW8 that DW5 received

the cheque amounts and the wife of the Propounder gave

Receipts for the mother, he pleaded ignorance. The evidence of

PW1 that the father gave Rs.8 Lakhs to Gouri Ponnamma for

her security is not disputed by the Propounder. What happened

to those amounts is not disclosed by the Propounder. He, being

the son who had been residing with Gouri Ponnamma, must

have full knowledge of the amounts received in those Court

Decrees and the utilisation of the same. The Propounder has no

case that the mother gave huge amounts to any of the other 2025:KER:72736

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children or spent huge amounts for any other purpose. In such

a case, I find considerable force in the contention of the Counsel

for the respondents that the amounts received by the mother

are misappropriated by the Propounder with the help of DW5,

who appeared for Gouri Ponnamma in those cases. The

respondents have a contention that the Propounder had been

leading a lavish lifestyle. In effect, the reasons stated in Ext.X5

for persuading Gouri Ponnamma to execute it are not correct. If

Ext.X5 was the true and genuine Will of the Testator, Gouri

Ponnamma would not have included such incorrect statements

in it.

72. The inclusion of 2.38 acres in Ext.X5, which was already

bequeathed in favour of Defendant No.4 by the father as per

Ext.B20, also makes it suspicious. DW8 deposed that the said

property was excluded after receiving money from Gouri

Ponnamma, but he pleaded ignorance about the documents 2025:KER:72736

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and claimed the said property is in his possession. 2.38 acres

out of the property situated in Alamcode village, described in

Ext.X5, belonged to the Defendant No.4 as per Ext.B20. If Gouri

Ponnamma had executed Ext.X5, the said property would not

have been included in Ext.X5. This also makes Ext.X5 shrouded

with suspicion.

73. With respect to assignment of trusteeship in S.N. Trust to the

Propounder as per Ext.X5, I find force in the contention of the

learned Senior Counsel for the appellant that the Propounder

has not become a hereditary trustee as per Ext.A34(a) Letter

issued by mother as the request was only to permit the

Defendant No.5 to represent Gouri Ponnamma who is the

Trustee.

74. Admittedly, the Propounder and the family had been residing

with Gouri Ponnamma in Jagathy House, where Ext.X5 Will and

Ext.X1 Cover were alleged to have been prepared. Et.X5 is 2025:KER:72736

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dated 30.10.1982 and its deposit is dated 01.11.1982. The

absence of DW8 in the residence during those days was not

properly explained by DW8. He deposed that he does not

remember whether his mother demanded that he not be present

in the house on 30.10.1982 or on the next day. Where DW8 and

his family were on 30.10.1982 and 01.11.1982 is not explained

by DW8. If the mother wanted to execute the Will in the absence

of the Propounder, she must have had prior knowledge about

the absence of the Propounder and his family on those days.

The Propounder has no case that he had intimated mother

about his absence on those days. DW8 admitted that his mother

told him that two advocates visited the house during his

absence and discussed the Will in favour of him, and that his

wife was present on that day. This would be contradictory to the

evidence of DW8 that he came to know about Ext.X5 Will only

after its execution from the mouth of Gouri Ponnamma.

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75. Gouri Ponnamma did not have even a basic education. It is not

proved as to how she got knowledge about the sealed cover

procedure for the deposit of the Will is suspicious. DW8 stated

that two months before the death of Venkitachalam Iyer on

03.10.1982, the mother visited him at the Medical College

Hospital and had discussions about the execution of the Will.

DW8 admitted that the Vekitachalam who died on 03.10.1982 is

not the lawyer, but was a friend of the father. DW8 stated that

the mother met Senior Advocate S. Narayanan Potti and DW5

with regard to the execution of the Will. Even though the

Propounder claimed that he had produced documents to show

that DW5 and Adv. Narayanan Potti appeared for Gouri

Ponnamma, he could not point out any document. DW8

admitted that Adv. Narayanan Potti appeared for him in C.M.A

arising from the present suit. The contention that the mother met

Senior Advocate S. Narayanan Potti and DW5 with regard to the 2025:KER:72736

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execution of the Will was developed only in evidence. Such

contention is very difficult to believe, especially since it is

claimed that Senior Advocate Sri. S. Narayanan Potti, practising

in the High Court, came to the residence of Gouri Ponnamma at

Thiruvananthapuram to meet her.

76. DW8 stated in Proof Affidavit that after execution of Ext.X5 Will

on 01.11.1982, Gouri Ponnamma informed him regarding the

existence of the Will and that the same was a closed one

deposited with the District Registrar; that Will had been

executed in his favour and warned him against revealing this

fact to anyone. DW8 further stated that Gouri Ponnamma

handed over Ext.X2 Receipt a few months before her death in

the year 1994 after returning from prolonged hospitalisation and

further informed him to wait till her 16th day Ceremonies after

death and then go alone and open the Will. In cross-

examination, he stated that he came to know about the Will in 2025:KER:72736

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the year 1982; that he does not remember the date or month;

that it is after one week from the date of the Will and then

corrected that as within one week. Then DW8 stated that he

came to know that Gouri Ponnamma is going to execute a Will

in his favour while she was discussing with Venkitachalam. He

does not state any specific reason for not stating these in the

Written Statement, though he admitted that it is an important

matter. DW8 further stated that only when he was given a copy

of the Will, he came to know that the Will was prepared by his

mother's advocate, DW5, and attested by her personal friend

and her husband. This would reveal that DW8 does not have a

consistent case with respect to his knowledge about the Will,

which makes the execution of Ext.X5 Will suspicious.

77. The contention of the learned Senior Counsel for the Appellant

is that Gouri Ponnamma wanted to keep the execution of the

Will a secret, and hence, a sealed cover procedure was 2025:KER:72736

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adopted. DW4 deposed that Gouri Ponnamma said that the Will

should be kept as top secret. It is in evidence that DW4 is known

to Defendant No.5 much before the execution of Ext.X5. If Gouri

Ponnamma wanted to keep the Will a secret, Gouri Ponnamma

would not have availed the service of DW5 to prepare the Will.

It is in evidence that DW5 is well known to the Defendant Nos.1

and 5. DW5 admitted that he appeared in 18 cases for

Defendant No.1, in 17 cases for Gouri Ponnamma and in 10

cases for Defendant No.5. DW5 stated that he had given

Vakalath for Gouri Ponnamma in only three cases before 1982.

PW1 deposed that DW5 was his lawyer since the year 1978-79

and that though Gouri Ponnamma had given joint Vakalath to

DW5 along with PW1, she had no occasion to meet DW5. DW7

deposed that DW7 and mother saw DW5 for the first time in the

year 1984 at the Ambalapuzha temple. This would show that

DW5 had much acquaintance with Defendant Nos.1 & 5. DW5 2025:KER:72736

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has not appeared only for Gouri Ponnamma in any case before

1982 and there is no evidence to prove that Gouri Ponnamma

had any personal acquaintance with DW5 otherwise than

through her children. The evidence shows that DW5 had a close

association with DW8. DW8 admitted that DW5 was his lawyer

and does not remember as to how many years he has known

DW5 as a lawyer. DW8 admitted that he had acquaintance with

DW5 since the year 1977. To the suggestion to DW8 that from

1982 to 1994, DW5 had filed several cases for him and that they

travelled together to Ernakulam, he answered that it was for his

mother's cases. DW8 admitted that he had stated in the Counter

Affidavit dated 05.02.1999 that the mother had stated about the

Will to all the children. DW5 deposed that the mother herself

had told Defendant No.4 about the Will. These evidences are

against the contention of Defendant No.5 that Gouri Ponnamma

wanted to keep the execution of the Will a secret.

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78. The conduct of Defendant No.5 in the suit proceedings itself

creates suspicion. He wanted to defer his examination after

completing the evidence of all witnesses. When he found it

difficult, he submitted before the Hon'ble Supreme Court that he

did not intend to examine himself. The Defendant No.5

examined DW5 only as Scribe. He could not be an attesting

witness. But Defendant No.5 put forward all his defences

through the mouth of DW5. Exts.B2 to B18, which should have

been marked through Defendant No.5, were marked through

DW5. The Defendant No.5 was compelled to give evidence on

account of the Remand Order and the Order in O.P.(C)

No.1853/2016 and O.P.(C) No.2005/2016. The reluctance of

Defendant No.5 to enter into the Witness box creates a strong

suspicion against the contentions raised by him, which include

the execution of Ext.X5. The attempt of Defendant No.5 to prove

his case through DW5, who is cited as Scribe of Ext.X5, makes 2025:KER:72736

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the suspicion more stronger. Overwhelming enthusiasm of DW5

to uphold Ext.X5 Will is obvious throughout his examination.

The evidence of DW5 would probabilize the case of the

respondents that he played a crucial role in the creation of the

Will. DW5 even went to the extent of deposing that it is a

misunderstanding that Gouri Ponnamma does not know

English, when all the parties to the suit admit that Gouri

Ponnamma was illiterate. The material averments with respect

to the execution of Ext.X5 Will and the knowledge of the

Defendant No.5 with respect to the same are not seen pleaded

in his Written Statement. All the material contentions are seen

advanced at the time of evidence without sufficient pleadings for

the same. DW8 admitted in cross-examination that only after the

Remand Order, for the first time, he is stating that material

details with respect to Ext.X5 were within his knowledge. DW8

in cross-examination stated that there was a quarrel among the 2025:KER:72736

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children when it was told that the mother had executed Will, but

no such contention was taken either in the Written Statement or

in the Proof Affidavit.

79. When substantial suspicious circumstances are there to doubt

the execution of Ext.X5, it makes other circumstances also

suspicious, though they may not independently make out the

execution of Will suspicious. The other circumstances are the

absence of any special reason for Gouri Ponnamma to give all

her properties to the Defendant No.5 alone to the exclusion of

all other children. Gouri Ponnamma parted with a portion of the

properties covered by the Will after its execution. The Defendant

No.5 went only with his associates to open the closed Will,

avoiding other legal heirs. The Defendant No.5 showed undue

haste in registering Ext.X5 Will, in effecting mutation and in

transferring the amounts standing in the bank accounts of Gouri

Ponnamma.

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80. In the Remand Order dated 05.03.2013 in R.F.A No.552/2004

and connected cases, this Court has entered a categorical

finding that the evidence placed on record is insufficient to enter

into a definite finding. The case was remitted back for fresh

consideration after affording both sides the opportunity to

adduce further evidence, if they choose. In the common

judgment in O.P.(C) Nos.1853 & 2005 of 2016, it is specifically

observed that the Defendant No.5 is permitted to examine

himself so as to explain the circumstances sought to be

explained by him in the Remand Order and he is not permitted

to adduce any evidence regarding the execution of the Will while

he is being in the box in order to fill up the lacunas in the

evidence of the persons who have been examined on his side

to prove the execution of the Will; that he may also be given an

opportunity to examine other witnesses if any required by filing

additional witness list without delay, if he wants to examine the 2025:KER:72736

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things sought to be explained by him by the Remand Order of

this Court. Thereafter, Defendant No.5 examined himself as

DW8. He tried to explain the six questions mentioned in the

Remand Order. The evidence of DW8 could not be used to

prove the execution of Ext.X5 Will and his evidence could not

be used to fill up the lacunas in the evidence of DW4 attesting

witness and DW5 Scribe. The Defendant No.5 further examined

DW9, who is his co-brother and who was a witness in Ext.B18,

and DW10, who prepared Ext.X10 Finger Print Report. The

evidence of DW9 does not relate to the execution of Ext.X5.

I have already discussed about Ext.X10 Fingerprint Report and

found that it does not say that the fingerprints in Exts.X1, X3 and

B18 belong to Gouri Ponnamma. Hence, the case of the

Defendant No.5 with respect to the execution of Exts.X1, X2 and

X5 is not improved after the Remand Order.

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81. In view of the above discussion, I am of the view that the Trial

Court correctly appreciated the evidence and the law on the point and held that Gouri Ponnamma died intestate and that the plaint schedule properties are liable to be partitioned, by rejecting Ext.X5 Will.

82. I take note of the contention of the Senior Counsel for the Additional Respondent No.9 and hold that if the Additional Respondent No.9 has obtained any right in the plaint schedule properties from the Defendant No.5, it can claim such right derived from the Defendant No.5 up to the extent of the undivided share of the Defendant No.5 in the Plaint schedule properties; that any other arrangement between the Defendant No.5 and the Additional Respondent No.9 is not binding on other sharers of the property; and that the Additional Respondent No.9 has no right to claim any equity as it is a pendente lite purchaser.

83. Accordingly, the Appeal is dismissed with costs.

Sd/-

M.A.ABDUL HAKHIM JUDGE Shg/