RFA/860/2008 of CHANDRIKA AND OTHERS Vs SANKARANARAYANAN on 31 December 2012

J U D G M E N T

Thottathil B.Radhakrishnan, J.

Janaky Amma died on 21/09/1994 leaving behind herdaughters, plaintiffs 1 & 2, and her son, the defendant.Plaintiffs 3 & 4 are Janaky Amma's granddaughters throughplaintiffs 1 & 2.

2. Some time in 1956, Janaky Amma got release of allother rights over the properties as per release deedNo.2859/56. It appears that certificate of purchase wasissued in a proceeding before the Land Tribunal. It is theadmitted case that on 08/05/1985, Janaky Amma executedfive settlement deeds, parting 75 cents equally to her son, herdaughters and her granddaughters. After her death on21/09/1994, the aforenoted females continued to live in the building in 9.5 cents that belonged to Janaky Amma. Later in2007, they sued for partition and allotment of shares by metesand bounds in accordance with the disposition made by JanakyAmma as per Ext.A8 registered Will shown to have beenexecuted on 14/05/1985. The plea of the defendant was thatExt.A8 is a product of impersonation and such a documentwas never executed and plaintiffs 3 & 4, who are thegranddaughters of Janaky Amma, are not entitled to any sharein the said item of property. He claims that he is entitled to1/3[rd] share, and the rest 2/3[rd] going to his two sisters.

3. At trial, a question for consideration was as towhether the propounder of Ext.A8 Will was proved as atestament and whether the disposition made thereby wouldentitle the plaintiffs to claim shares as they had done. One ofthe witnesses to Ext.A8 was examined. Sub Registrar was alsoexamined. The first plaintiff gave evidence. Someindependent witnesses were also examined on the side of the At trial, a question for consideration was as to plaintiffs. The defendant tendered evidence as DW1.

4. The court below, going by the judgment, appears to

have proceeded by the possible probabilities andimprobabilities; going by the dates of the documents and theidentity of the persons, who are scribes for the respectivedocuments. The five settlement deeds were on 08/05/1985.The scribe of those documents is not the scribe of Ext.A8. Thecourt below, therefore, assumed that it would be improbablethat Ext.A5 was drawn up and executed. Remember, Ext.A8Will is allegedly executed on 14/05/1985. It is not necessarythat the same scribe should have written it down. On record,it is also the evidence of PW3, who said that he andSmt.Vilasini and others were scribes attached to the sameoffice of Document Writers. Obviously, no reference of the Willdated 14/05/1985 could have been made in documents,which were executed on 08/05/1985, though the chance ofmaking a mention of such a proposal need not be or cannot be ruled out. But, in our view, it does not appear to be clinging.

We say so because when Janaky Amma got release of theproperties in 1956, and thereafter, held the entire propertiesby herself, she made Exts.A4 to A7 and another settlement asif she was settling her properties in favour of all persons, whocould have treated as members of her family on the date ofcoming into force of the Kerala Joint Hindu Family System(Abolition) Act, 1975. In that premise, we cannot outrightreject the probability of Janamy Amma having thought ofkeeping her daughters and grand daughters with provision forappropriate accommodation while dealing with the 9.5 centsof land and building. With these, and other attendantcircumstances, we are not prepared to outright reject theplaintiffs' contention regarding the back-drop of Ext.A8 Will.

5. Insofar as the testamentary capacity and otherattendant circumstances are concerned, we would recall thatexecution of five settlement deeds by Janaky Amma on Insofar as the testamentary capacity and other

08/05/1985 is not disputed by the defendant. Thosesettlements are also made by Janaky Amma by givingproperties to both the granddaughters at share at par withwhat is being granted to a daughter or a son.

6. With the aforesaid, we are of the view that the courtbelow needs to provide a further opportunity for parties tobring on record any further evidence. This is particularly sobecause the person, who came to the court as the SubRegistrar, had nothing to say in relation to the registration ofthe document in question. May be, he was just the custodianand could not speak of the acts in connection with theregistration of Ext.A8.

With the aforesaid, we are of the view that the court

7. Having decided to make an order of remit, we seeI.A.No.846 of 2012 wherein the plaintiffs (the females) havesought for permission to construct a residential house in theproperty in question. The defendant has filed a counter

Conclusion

affidavit. The fact of the matter remains that there was abuilding and this Court had granted permission to carry outrepairs and renovation. Human beings need shelter. Here,those who need shelter are females. It is stated that manyportions of the old and dilapidated building fell down and theplaintiffs have a permit from the local authorities concerned tobuild. Under such circumstances, in our view, the balance ofconvenience tilts heavily in favour of the appealing plaintiffsfor permission to construct a residential house in the plaintschedule property without claiming any additional benefit orclaims on the basis of such construction. This shall be strictlyin accordance with any approved plan as may be granted bythe local authority concerned. A certified copy of the plan alsoshall be produced before the court below. I.A.No.846 of 2012will stand allowed in these terms.

In the result, the impugned decree and the judgment areset aside, and the suit is remitted to the court below for trial

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and disposal by permitting parties to adduce further evidence.

For such purpose, the parties are directed to mark appearancebefore the court below on 22/01/2013.

This R.F.A. is ordered accordingly.

(THOTTATHIL B.RADHAKRISHNAN, JUDGE)

(A.V.RAMAKRISHNA PILLAI, JUDGE)

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