Kerala High Court

P.N.Girijakumariamma vs K.Gopinathan Nair on 3 November, 2022

OP(C) NO. 943 OF 2022
                                1

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
                THE HONOURABLE MR.JUSTICE C.S.DIAS
THURSDAY, THE 3RD DAY OF NOVEMBER 2022 / 12TH KARTHIKA, 1944
                      OP(C) NO. 943 OF 2022
    AGAINST THE ORDER/JUDGMENT IN OS 338/2007 OF MUNSIFF
                         COURT,CHENGANNUR
PETITIONER/S:

    1    P.N.GIRIJAKUMARIAMMA
         AGED 67 YEARS
         W/O LATE V.K.GOPALAKRISHNAN NAIR. PRANAVAM VEEDU,
         KEEZHCHERIMEL MURI, CHENGANNUR VILLAGE,
         CHENGANNUR TALUK. PIN 689121

    2    G.ARUN
         AGED 37 YEARS
         S/O P.N. GIRIJAKUMARIAMMA,
         PRANAVAM VEEDU, KEEZHCHERIMEL MURI,
         CHENGANNUR VILLAGE, CHENGANNUR TALUK., PIN 689121 .


    3    G.APARNA,
         AGED 33 YEARS
         , D/O P.N. GIRIJAKUMARIAMMA, PRANAVAM VEEDU,
         KEEZHCHERIMEL MURI,
         CHENGANNUR TALUK., CHENGANNUR VILLAGE, PIN 689121 .



         BY ADVS.
         M.NARENDRA KUMAR
         HARSHADEV M.



RESPONDENT/S:

         K.GOPINATHAN NAIR
         AGED 90 YEARS
         MALAYIL PARAMBIL ANJALIHOUSE, KEEZHCHERYMEL MURI,
         CHENGANNUR VILLAGE, CHENGANNUR TALUK. PIN 689121 .,

         BY ADVS.
         DEEPAK MOHAN
 OP(C) NO. 943 OF 2022
                                    2

            JOMY GEORGE(J-272)
            R.PADMARAJ(P-15)
            M.J.BENNY(K/1145/2003)
            R.AJITH KUMAR [V.K.EDOM](K/000629/2016)
            CHITRA N. DAS(K/001228/2018)
            RISHAB S.(K/000757/2019)
            T.K.SHAIJ RAJ(S-1236)
            ASHA V.S.NAIR(A-747)




     THIS     OP   (CIVIL)    HAVING    COME   UP    FOR    ADMISSION    ON
03.11.2022,    THE    COURT    ON   THE   SAME      DAY    DELIVERED    THE
FOLLOWING:
 OP(C) NO. 943 OF 2022
                                   3

                         JUDGMENT

Aggrieved by Ext.P5 order passed by the Court of

the Munsiff, Chengannur in I.A.No.1/2022 in

O.S.No.338/2007, the defendants in the suit have filed

the original petition. The respondent in the original

petition is the plaintiff in the suit.

2. The facts in brief, leading to Ext.P5 order, are: the

respondent has filed the suit, inter-alia, for declaration of

title. The plaint schedule property originally belonged to

Ramachandran Nair, who was a bachelor and he died

issueless on 03.07.2007. The respondent is the brother of

the deceased. Ramachandran Nair had two other

brothers named Gopalakrishnan Nair and Ravindran

Nair, who predeceased Ramachandran Nair. The

petitioners are the wife and children of Gopalakrishnan

Nair. The respondent is the sole legal heir of

Ramachandran Nair in the light of the provisions of

Hindu Succession Act. The petitioners have filed a

written statement resisting the suit, inter-alia, OP(C) NO. 943 OF 2022

contending that Ramachandran Nair had executed a Will

in their favour. However, the two attestors to the Will

have died, pending the suit. Section 68 of the Indian

Evidence Act, (in short, 'Act') mandates atleast one of the

witnesses have to be examined to prove the Will. On the

death of both the attestors, Section 69 of the Act comes

into play. In order to fulfill the ingredients of Section 69

of the Act, the petitioners filed I.A.No.1/2022 (Ext.P3),

seeking leave to amend the written statement. The

application was opposed by the respondent through

Ext.P4 written objection. The court below, by the

impugned Ext.P5 order, rejected Ext.P3 application.

Ext.P5 is erroneous and wrong. Hence, the original

petition.

3. The respondent has filed a counter affidavit

refuting the allegations in the original petition. It is,

inter-alia, contended that the suit was filed in the year

2007. 15 years have lapsed since the litigation has

started. In OP(C) No.603/2022, this Court has directed OP(C) NO. 943 OF 2022

the court below to consider and dispose of the present

suit and the connected suit i.e., O.S.No.352/2007 within

four months. There is no necessity to amend the written

statement at this belated stage. The suit is included in

the special list. The sole intention of the petitioners is to

protract the litigation. The original petition is devoid of

any merit and may be dismissed.

4. Heard; Sri.Narendra Kumar, the learned counsel

appearing for the petitioners and Sri.R.Padmaraj, the

learned counsel appearing for the respondent.

5. Sri.Narendra Kumar argued that the defense of

the petitioners is that they have inherited the property

through the Will executed by Ramachandran Nair. But,

pending the suit, the attestors have died. However, as the

wording in Section 69 of the Act, is 'no witness can be

found' and 'not died', the written statement has to be

amended.

6. Sri.R.Padmaraj opposed the above submission and

contended that the amendment sought to be incorporated OP(C) NO. 943 OF 2022

is a fact in issue that has to be substantiated by the

petitioners through evidence and not by pleadings. If the

attesting witnesses are dead, the petitioners have to

prove the Will as per the procedure contemplated under

Section 69 of the Indian Evidence Act. Therefore, there is

no necessity to amend the written statement at this

belated stage. The court below has rightly rejected the

application for amendment.

7. The question is whether there is any error in

Ext.P5 order.

8. The respondent has filed the suit for declaration

of title and other ancillary reliefs. The same has been

resisted by the petitioners on the ground that

Ramachandran Nair had executed the Will in their

favour. The execution of the Will is specifically pleaded in

the written statement.

9. This Court has in OP(C) No.603 of 2022 directed

the court below to consider and dispose of the two suits.

Consequentially, the suits are listed for trial. OP(C) NO. 943 OF 2022

10. Now, the petitioners have contended that,

pending the suit, the attestors to the Will have died. The

fact of death of the attestors has to be incorporated in

the written statement to fulfill the ingredients of Section

69 of the Indian Evidence Act.

11. Section 69 of the Indian Evidence Act reads as

follows:

"If no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person".

12. The above provision provides the manner in

which a Will is to be proved, if the attesting witnesses are

not found.

13. The anxiety of the petitioners is that as the

wording in the above Section is 'not found' and 'not

dead', and the attesting witnesses have died, the

amendment is necessary.

OP(C) NO. 943 OF 2022

14. This Court is unable to accept the contention of

the petitioners because, a person who is dead is

obviously a person who cannot be found. If it is proved

that a person is dead, it is conclusive proof that the