Kerala High Court
Iqbal vs St.George Chruch on 15 September, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE M.R.ANITHA
THURSDAY, THE 15TH DAY OF SEPTEMBER 2022 / 24TH BHADRA, 1944
RSA NO. 329 OF 2022
AGAINST THE ORDER/JUDGMENT IN AS 64/2018 OF SUB COURT,KOCHI
OS 169/2015 OF MUNSIFF COURT, KOCHI
APPELLANT/1ST RESPONDENT/1ST DEFENDANT:
IQBAL
AGED 56 YEARS
S/O. BAVA, MULLAPPILLY PARAMBIL HOUSE, ELAMKUNNAPUZHA DESOM,
ELAMKUNNAPUZHA VILLAGE, KOCHI TALUK, 682 511.
BY ADVS.
M.P.RAMNATH
BEPIN PAUL
S.SANDHYA
SHALU VARGHESE
K.S AKSHAY MOHAN
GENTLE C.D.
K.J.SEBASTIAN
P.RAJESH (KOTTAKKAL)
M.VARGHESE VARGHESE
S.DEEPAK
ANTONY THARIAN
UMA R.KAMATH
RESPONDENTS/APPELLANTS & RESPONDENTS 2 TO 5/PLAINTIFFS 1 TO 4 AND DEFENDANTS
2 TO 5:
1 ST.GEORGE CHRUCH,
KARTHEDOM,
REPRESENTED BY ITS VICAR ANTONY KOPANDUSSERY, S/O. JOSEPH,
RESIDING AT THE BUNGLOW OF THE ST. GEORGE CHURCH, KARTHEDOM,
MALIPURAM 682 511. ERNAKULAM DISTRICT.
2 RT REV. DR JOSEPH KARIKKASSERY,
AGED 74 YEARS
S/O. KARIKKASSERY ROCKY, BISHOP OF KOTTAPURAM DIOCESE, KOTTAPPURAM
PIN - 680 667, THRISSUR DISTRICT, REPRESENTED BY HIS POWER HOLDER
FR ANTONY KOPANDUSSERY.
3 ALFRED D.CUNHA,
AGED 71 YEARS
TRUSTEE OF THE FIRST PLAINTIFF, PANDARAPARAMBIL, MALIPURAM,
ELAMKUNNAPUZHA VILLAGE, ERNAKULAM DISTRICT PIN - 682511.
4 JOY P.P.,
AGED 69 YEARS
S/O. PAILY, TRUSTEE OF THE 1ST PLAINTIFF, PALLIPARRAMBIL,
MALIPURAM, ELAMKUNNAPUZHA, ERNAKULAM DISTRICT.. PIN - 682511
5 MADHU,
AGED ABOUT 52 YEARS
S/O. ASHOKAN, KOCHIKKAPARAMBIL, MALIPURAM, ELAMKUNNAPUZHA VILLAGE,
ERNAKULAM DISTRICT, PIN - 682511.
R.S.A.No.329/2022
2
6 DILEEP KUMAR,
AGED 62 YEARS
S/O. ASHOKAN, KOCHIKKAPARAMBIL, MALIPURAM DESOM, ELAMKUNNAPUZHA
VILLAGE, PRESIDENT, CITU TAXI CAR DRIVERS UNION, ERNAKULAM
DISTRICT. PIN - 682511.
7 BABU,
AGED 61 YEARS
S/O. ANANTHAN, KAITHARA HOUSE, NJARACKAL P.O., ELAMKUNNAPUZHA
PANCHAYATH, MALIPURAM P.O, ERNAKULAM DISTRICT. PIN - 682511
8 THE SECRETARY,
ELAMKUNNAPUZHA PANCHAYATH, MALIPURAM P.O, ERNAKULAM DISTRICT.
PIN - 682511.
BY ADVS.
JOHNSON ABRAHAM
NELSON ABRAHAM
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 10.08.2022,
THE COURT ON 15.09.2022 DELIVERED THE FOLLOWING:
R.S.A.No.329/2022
3
JUDGMENT
The Regular Second Appeal has been directed against the
judgment and decree passed in A.S.No.64/2018 on the file of
Subordinate Judge's Court, Kochi, which arose out of the
judgment and decree in O.S.No.169/2015 on the file of Principal
Munsiff's Court, Kochi.
2. Parties would hereinafter be referred as per their
status before the trial court.
3. The appellant is the first defendant. The suit was one
for fixation of boundary, recovery of possession as well
permanent prohibitory injunction and mandatory injunction.
First plaintiff is the Church who is the owner in possession of the
plaint schedule property. The church property is under the
administration of the 2nd plaintiff. The 2nd plaintiff, the Bishop of
Kottappuram diocese, has given power of attorney to the Vicar of
the first plaintiff church to file the suit. By virtue of Settlement
Deed No.22/2007 of SRO Narakkal, one Joseph Rajan, a
R.S.A.No.329/2022
parishioner, settled the plaint schedule property having an
extent of 2.075 cents comprised in survey No.443/25 (re-survey
No.356/1) in favour of the church. Mutation was effected and
the first plaintiff is in possession and enjoyment of the property
therefrom.
4. Before 8 months of the institution of the suit,
defendants 1 and 2 started conducting the business of fruits and
vegetables, erecting stall in the plaint schedule property after
committing trespass. While so, the brother of the second
defendant, who is the third defendant and his friend 4 th
defendant claiming to be the office bearers of the taxi car drivers
union installed two sign boards of 'Taxi Car Drivers Union CITU'
in the schedule property. Thereafter, the suit has been filed.
5. Respondents 1 to 4 filed written statement disputing
the ownership of first plaintiff over the plaint schedule property
for the reason that the executant Joseph Rajan has no right to
execute the Settlement Deed No.22/2007. The father of the first
defendant had been conducting the fruit shop for about 25 years
and for the last 10 years first defendant has been conducting the
same. Defendants 3 and 4 are in possession of the schedule
R.S.A.No.329/2022
property for more than 30 years and the sign boards were
installed on concrete foundation in the year 1991. Nobody
objected the same. It is also contended that if all the appellants
had any right over the plaint schedule property it is lost by
adverse possession and limitation since the respondents have
been in continuous, open and hostile possession of the schedule
property for more than 35 years. So, according to them, the right
of the owners of the property, if any, is barred by limitation.
6. The 5th defendant, Elamkunnappuzha Panchayat,
remained exparte.
7. PWs 1 to 3 examined and Exts.A1 to A8 marked from
the side of the plaintiffs. DWs 1 to 5 examined from the side of
the defendants.
8. After trial, the learned Munsiff found against the plea
of adverse possession set up by the defendants. However, it has
been found that the plaintiffs failed to prove the execution of
Ext.A8 Will, the original of which is produced at the time of
examination and consequently it was held that the plaintiffs have
not established title over the schedule property and accordingly
the suit was dismissed. Against which, the plaintiffs filed appeal
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before the Subordinate Judge's Court, Kochi and by the
impugned judgment the first appellate court found that the
execution of the Will has been satisfactorily proved. It is also
found that defendants 1 to 4 have no legal right to challenge or
raise suspicion over execution of Ext.A7 Will since they are
strangers. The first appellate court concurred with the finding of
the trial court with respect to the plea of adverse possession set
up by the defendants and further found that the plaintiffs proved
their title over the plaint schedule property and decreed the suit
as prayed for.
9. Aggrieved by the same first defendant alone
approaches this Court in second appeal. Caveat has been filed by
the respondents/plaintiffs. Lower court records were called for
and both sides were heard.
10. The first contention of the learned counsel is with
regard to the non-compliance of Section 68 of the Indian
Evidence Act, 1872 with regard to the proof of Will. Learned
counsel relies on H. Venkatachala Iyengar v. B.N. Thimmajamma
[AIR 1959 SC 443 : 1959 KHC 498] and also Janaki Narayan Bhoir
v. Narayan Namdeo Kadam [AIR 2003 SC 761 : 2003 (2) SCC 91:
R.S.A.No.329/2022
2003 KHC 808] in this regard. He would contend that PW2, who
was examined from the side of the plaintiffs to prove the Will did
not speak about the attestation by other witnesses. According to
him, that fact has been correctly discussed by the trial court and
first appellate court went wrong in entering a finding to the
contra. The finding that the defendants being strangers have no
authority to challenge the Will is also seriously challenged by the
1st defendant (hereinafter be referred as defendant). He would
also contend that plaintiffs claim title through Exts.A2, A6 and
A7 (A8). Ext.A6 is the copy of Partition Deed No.910/1951 of
SRO, Njarakkal. Ext.A8 is the true copy of the Will No.26/3/89 of
SRO Njarakkal dated 01.03.1989 (Ext.A7 is the certified copy)
and Ext.A2 is the certified copy of settlement deed No.22/2007 of
SRO Njarakkal. He would contend that in Ext.A7 there is
mention of 60 cents in Survey No.443 and hence it has to be
assumed that as per Ext.A6 the extent of property in survey
No.443 is 60 cents. But Ext.A6 simply says 3.85 acres in Survey
No.1178, 1137, 1123 and 443 without specifically referring to
the extents of properties covered by each survey numbers. So
there is no data or material to prove the actual extent of
property in survey No.443 and how the commissioner
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demarcated the plaint schedule property out of the total extent
without measuring the entire property comprised in survey
No.443 remains unexplained. So according to the learned
counsel the plaint schedule property is not properly identified.
He would also contend that the trial court has properly discussed
the facts and law and without any reason the first appellate court
reversed the judgment and decree passed by the trial court.
11. The learned counsel for the plaintiffs on the other hand
would contend that the plaint schedule property having an
extent of 2.075 cents is settled in favour of first plaintiff church
by a parishioner for the purpose of constructing a chapel and
without any bonafides the defendants are raising untenable
contentions over the property owned by the church and
according to him a very detailed discussion of facts and law have
been made by the first appellate court and decree was passed in
favour of the plaintiffs and there is no reason whatsoever to
interfere with the said finding in the second appeal. He would
also contend that there is no substantial question of law
emerging for consideration and the first defendant, being a
stranger, has no authority to challenge the Will executed in
favour of the predecessor of the first plaintiff since none of the
R.S.A.No.329/2022
legatees under the Will have ever disputed or challenged the Will
which has been executed in the year 1989. He would also
contend that a survey commission was taken by the plaintiffs and
a commission report and plan was filed and it has been proved in
evidence and there is no question regarding identity has been
raised before the lower forums and moreover that according to
him is a question of fact and hence cannot be raised in second
appeal. So, according to the learned counsel for the plaintiffs,
there is no merit in the appeal and is only to be dismissed.
12. Plaint schedule property is 2.075 cents comprised in
survey No.443/25 (re-survey No.356/1) of Elamkunnappuzha
village settled by Joseph Rajan a parishioner in favour of the first
plaintiff as per Ext.A2. Ext.A6 is the certified copy of the
Partition Deed No.910/1951 of SRO Njarakkal by which the
father of the settler obtained the plaint schedule property.
13. Ext.A7 is the Will by which the testator Thomas
obtained a large extent of property including the plaint schedule
property which is described in item No.26 of Ext.A6 partition
deed. An extent of 3.85 acres of land has been allotted to
Thomas. As per Ext.A6 item No.26 has been allotted to Thomas,
R.S.A.No.329/2022
S/o. Joseph Karikkaseri and properties are comprised in different
survey numbers including survey No.443 of Elamkunnappuzha
village. So the main contention of the learned counsel for the
defendant is that since there is no specific description in Ext.A6
as to how much extent of property is there in each survey
number the case of the plaintiffs that out of 60 cents comprised
in survey No.443 of Elamkunnappuzha village the plaint
schedule property has been settled in favour of the first plaintiff
cannot be accepted without proper demarcation of the said tiny
extent of property.
14. Firstly, I will deal with the contention of the learned
counsel with regard to the proof of execution of Ext.A7 Will. He
would contend that the Will has not been proved as
contemplated under Section 68 of the Evidence Act and Section
63 of the Indian Succession Act.
15. In Janaki Narayan Bhoir, relied on by the learned
counsel for the defendant, it has been held that one of the
attesting witnesses examined should be in a position to prove the
execution of a Will and it is also held that if one attesting witness
can prove the execution of the Will in terms of clause (c) of
R.S.A.No.329/2022
Section 63, attestation by two attesting witnesses in the manner
contemplated therein, the examination of other attesting witness
can be dispensed with. The one attesting witness examined in his
evidence has to satisfy the attestation of a will by him and the
other attesting witness in order to prove that there was due
execution of the Will. If the attesting witness examined besides
his attestation does not, in his evidence, satisfy the requirements
of attestation of the Will by other witness also it falls short of
attestation of will at least by two witnesses for the reason that
the execution of the will does not merely means the signing of it
by the testator. But it means fulfilling and proof of all the
formalities required under Section 63 of the Indian Succession
Act. It is also held that where one attesting witness examined to
prove the will under Section 68 of the Evidence Act fails to prove
the due execution of the will then the other available attesting
witness has to be called to supplement his evidence to make it
complete in all respects.
16. According to the learned counsel, PW2 did not speak
about the signing of the will by the other witness. In that aspect
the learned counsel relied on H. Venkatachala Iyengar, referred
above, to contend that a will has to be proved like any other
R.S.A.No.329/2022
document except as to the special requirement of attestation
prescribed under Section 63 of the Indian Succession Act.
17. Section 68 of the Indian Evidence Act is relevant in
this context to be extracted which reads thus:
"68. Proof of execution of document required by law
to be attested .- If a document is required by law to be
attested, it shall not be used as evidence until one
attesting witness atleast has been called for the purpose of
proving its execution, if there be an attesting witness alive,
and subject to the process of the Court and capable of
giving evidence:
[Provided that it shall not be necessary to call an
attesting witness in proof of the execution of any
document, not being a Will, which has been registered in
accordance with the provisions of the Indian Registration
Act, 1908 (16 of 1908), unless its execution by the person
by whom it purports to have been executed is specifically
denied].
18. On reading the above, it is crystal clear that a
document which is required by law to be attested shall not be
used as evidence until at least one attesting witness is examined.
Proviso to Section 68 also would make it clear that except in the
case of a Will which has been registered in accordance with the
provisions of the Indian Registration Act, 1908 it shall not be
necessary to call for an attesting witness in proof of the
R.S.A.No.329/2022
execution of the document unless its execution by the person by
whom its purports to have been executed is specifically denied.
So, as far as a Will is concerned, notwithstanding the admission
of execution of the document, the propounder of the Will is
bound to prove its execution by examining atleast one attesting
witness.
19. Law in this regard is well settled and it is relevant in
this context to quote Ramesh Verma (D) Thr. LRs v. Lajesh Saxena
(D) By LRs & Anr : 2016 ICO 1610 : AIR 2017 SC 494 : (2017) 1
SCC 257. Paragraphs 13 and 14 of the said judgment is relevant
in this context to be extracted which read as follows:
"A Will like any other document is to be proved in
terms of the provisions of Section 68 of the Indian
Succession Act and the Evidence Act. The propounder of the
Will is called upon to show by 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 disposition
and put his signature to the document on his own free will
and the document shall not be used as evidence until one
attesting witness at least has been called for the purpose of
proving its execution. This is the mandate of Section 68 of
the Evidence Act and the position remains the same even in
a case where the opposite party does not specifically deny
the execution of the document in the written statement.
14. In Savithri v. Karthyayani Amma reported as (2007) 11
SCC 621 at page 629, this Court has held as under:-
R.S.A.No.329/2022
"A Will like any other document is to be proved in
terms of the provisions of the Succession Act and the
Evidence Act. The onus of proving the Will is on the
propounder. The testamentary capacity of the testator
must also be established. Execution of the Will by the
testator has to be proved. At least one attesting
witness is required to be examined for the purpose of
proving the execution of the Will. It is required to be
shown that the Will has been signed by the testator
with his free will and that at the relevant time he was
in sound disposing state of mind and understood the
nature and effect of the disposition. It is also required
to be established that he has signed the Will in the
presence of two witnesses who attested his signature
in his presence or in the presence of each other. Only
when there exists suspicious circumstances, the onus
would be on the propounder to explain them to the
satisfaction of the Court before it can be accepted as
genuine."
20. In Sarada v. Radhamani : 2017 (2) KLT 327, Division
Bench of this Court upon a reference on the question as to
whether the statutory mandate that a Will required by law to be
attested shall not be used as evidence until one attesting witness
at least has been called for the purpose of proving its execution
if he be alive and subject to the process of Court will apply even
while the execution of the Will by the person by whom it purports
to have been executed has not specifically denied or expressly
admitted. It was answered by holding that even while the
R.S.A.No.329/2022
execution of the will by the person by whom it purports to have
been executed is specifically denied or expressly admitted, a will
required by law to be attested shall not be used as evidence until
one attesting witness at least has been called for the purpose of
proving its execution if he be alive and subject to the process of
court.
21. In the above decision Jagdish Chand Sarma v. Narain
Singh Saini and Others : 2015 (3) KLT SN 11 (C.No.15) SC : AIR
2015 2149 has been quoted wherein it has been categorically
held that the statutory provisions make it incumbent for a
document required by law to be attested to have its execution
proved by examining at least one of the attesting witnesses, if
alive, and is subject to the process of court conducting the
proceedings involved and is capable of giving evidence. The
rigour is, however, eased in the case of a document also required
to be attested but not a Will if the same has been registered in
accordance with the provisions of the Indian Registration Act,
1908 unless the execution of this document by the person said to
have executed it denies the same. It has been emphasised that in
any view of the matter, the relaxation extended by the proviso is
of no avail qua a Will. The proof of a Will to be admissible in
R.S.A.No.329/2022
evidence with probative potential, being a document required by
law to be attested by two witnesses, would necessarily need
proof of its execution through atleast one of the attesting
witnesses if alive, and subject to the process of the court
concerned and is capable of giving evidence.
22. Relevant paragraph of the decision reported in
Tribhovandas Haribhai Tamboli v. Gujarat Revenue Tribunal :
(1991) 3 SCC 442 has also been quoted in the above decision
which reads as follows:
"It is a cardinal rule of interpretation that a proviso to
a particular provision of a statute only embraces the filed,
which is covered by the main provision. It carves out an
exception to the main provision to which it has been enacted
by the proviso and to no other. The proper function of a
proviso is to except and deal with a case which would
otherwise fall within the general language of the main
enactment, and its effect is to confine to that case. Where
the language of the main enactment is explicit and
unambiguous, the proviso can have no repercussion on the
interpretation of the main enactment, so as to exclude from
it, by implication what clearly falls within its express terms.
The scope of the proviso, therefore, it to carve out an
exception to the main enactment and it excludes something
which otherwise would have been within the rule. It has to
operate in the same field and if the language of the main
enactment is clear, the proviso cannot be torn apart from the
main enactment nor can it be used to nullify by implication
what the enactment clearly says nor set at naught the real
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object of the main enactment, unless the words of the
proviso are such that it is its necessary effect."
23. The overriding effect of Section 68 of the Act on
Section 58 has also been dealt in Sarada's case. Paragraph No.16
is relevant in this context which reads as follows:
"16. There is a world of difference between the factum
of a document akin to the Will being admitted under Section
58 of the Act and proof of due execution of the Will under
Section 68 of the Act. The due execution of the Will cannot
be proved otherwise than by recourse to Section 68 of the
Act and Section 63 of the Indian Succession Act, 1925 as has
been held time and again. The general provisions of Section
58 of the Act has obviously to give way to the special
provisions of Section 68 of the Act which govern documents
required by law to be attested. That some documents are
required by law to be attested imply that law gives
additional solemnity empowering the executants with rights
and obligations thereunder. Section 68 of the Act operates
as an exception in relation to documents required by law to
be attested and cannot be said to be subject to Section 58 of
the Act by any stretch of imagination. No distinction has
been drawn by the statutory provision between an 'admitted
Will' and a 'disputed Will' as has been rightly observed by
Mr. Justice P. Bhavadasan in Poulose.A.V.'s case (supra). One
of the attesting witnesses if he be alive should be called for
the purpose of proving its execution whenever a Will is used
as evidence and for whatever purpose.
24. Poulose A.V v. Indira M.R and Others : 2010 (3) KLT
Suppl.185 (Ker) : ILR 2010 Ker.388 has also been quoted to
emphasize the point that there is no distinction drawn by the
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statutory provision between an admitted and a disputed Will. So,
the fact that the Will was admitted or was not denied is not at all
a factor to be taken into account while deciding the question of
proof of Will as contemplated under Section 68 since Section 68
of the Act has got overriding effect over Section 58 in the case of
Wills.
25. So, the next question for consideration is whether the
mandate under Section 68 of the Act would apply when the Will
is to be proved as against a stranger.
26. In Sreelatha and Others v. Santha and Another : 2022
(1) KHC 74 a learned Single Judge of this Court has held that a
total stranger has nothing to do with execution of a testament or
Will or devolution of successive interest thereunder, unless he is
a person claiming under the testator or a "person interested to
admit or deny its execution" such as a pendente lite transferee
or a person litigating under any of legatees or a person acquired
interest over it by any deeds, transfer etc., but will not include a
person, who has set up adverse interest over the property in
derogation of rights of testator. The principle behind it is that a
testament would operate only with respect to the subsisting
rights held by the testator over the subject of the Will and it is an
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internal matter to be agitated between the persons claiming
under him viz., legatees, legal heirs and legal representatives
and not available to a stranger, who claims adverse interest
against the testator over the subject.
27. In this context, it is also relevant to quote S.Ganesan v.
S.Kuppuswamy and Ors. : MANU/TN/3990/2009 wherein a
learned Single Judge of Madras High Court decided an identical
question while dealing with Section 213(1) of the Indian
Succession Act which expressly provides that no right as
executor or legatee can be established in any Court of Justice,
unless a Court of competent jurisdiction in India has granted
probate of the Will under which the right is claimed, or has
granted letters of administration with the Will or with a copy of
an authenticated copy of the Will annexed. Paragraph Nos.17, 19
and 21 of the said decision is relevant which read as follows:
17. In view of the decision of the Hon'ble Apex Court
reported in (2008)4 SCC 300 (cited supra) when a person
having no caveatable interest or in any way related to the
testator cannot insist upon the Will being proved strictly in
accordance with Section 68 of the Indian Evidence Act. In
this case, the defendants admittedly are not in any way
related to the deceased and obviously they are not the legal
heirs of the deceased testator and in such a case, the
defendants cannot call upon the plaintiff to prove Ex.A17,
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the Will in accordance with Section 68 of the Indian
Evidence Act. Ex.A17 is a registered Will and in such a case,
the decision of the Hon'ble Apex Court reported in
2006(2)LW 658 SC [Pentakota Satyanarayana & Others v.
Pentakota Seetharatnam & Others] is relevant and an
excerpt from it would run thus:
"25. A perusal of Ex.B9 (in original) would show
that the signatures of the Registering Officer and
of the identifying witnesses affixed to the
registration endorsement were, in our opinion,
sufficient attestation within the meaning of the
Act. The endorsement by the sub-registrar that
the executant has acknowledged before him
execution did also amount to attestation. In the
original document the executants signature was
taken by the sub-registrar. The signature and
thumb impression of the identifying witnesses
were also taken in the document. After all this, the
sub-registrar signed the deed. 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 the
testament of departed testator.
x x x x xx
19. The learned counsel for the defendants cited the
decision of this Court reported in 2007(5) CTC 513
[L.Bakthavatsalam and others vs. R.Alagiriswamy
R.S.A.No.329/2022
(died) and others) so as to highlight the point that a
Will has to be proved in accordance with Section 63 of
the Indian Evidence Act. To the risk of repetition
without being tautologous, I would state that the said
decision is not applicable to the facts and
circumstances of this case for the reason that the Will
is sought to be pressed into service as against the
defendants who are not the legal heirs or in any way
interested in the suit property having some covetable
interest in it.
x x x x xx
21. The learned counsel for the plaintiff would
appropriately and appositely would cite the decision of
this Court reported in (2001) 1 TNLJ 71 [Valliammal vs.
Arumugha Gounder and another] to buttress his stand
that truth and validity of a Will cannot be questioned by
a stranger to the family of the testator. It is therefore
crystal clear that in this case, the defendants
contention that the Will Ex.A17 was not proved in
accordance with Section 63 of the Indian Evidence Act
fails to carry conviction with the Court. Accordingly,
this issue is decided to the effect that the plaintiff
proved the due execution of the Will Ex.A17 by the
testator, however in view of the decision under point
No.1, such unprobated Will cannot be relied on by the
plaintiff in support of his claim and prayers in the
plaint.
28. From the above, what could be gathered is that the law
laid down is that the truth and validity of a Will cannot be
questioned by a stranger who is not claiming under the testator
or in any way interested in the suit property, and will not include
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any person who sets up adverse interest over the property in
derogation of rights of testator.
29. So in this particular case the Will was executed in the
year 1989 and none of the legatees have any dispute with regard
to the execution of the Will and the predecessor of the first
plaintiff settled 2.075 cents of property to the first plaintiff in the
year 2007. The plaintiffs produced certified copy of the
settlement deed by which the property was settled in their
favour by Joseph Rajan (Ext.A2). Subsequent tax receipt proving
that the first plaintiff effected mutation in accordance with the
settlement deed also produced. So plaintiffs could establish their
title and possession over the plaint schedule property and the
first defendant being a stranger is not entitled to dispute the
validity of the will also. Moreover, the plaintiffs examined PW2,
one of the attesting witnesses. The learned Munsiff found that
through a leading question it was brought out in chief
examination of PW2 that deceased had signed in the presence of
witnesses. So it is found that as per Section 142 of the Indian
Evidence Act the leading question must not if objected by the
adverse party be asked in chief examination except with the
permission of the court. It is further found that PW2 testified
R.S.A.No.329/2022
that he signed in the presence of testator but did not depose
about the attestation by the other attesting witnesses and since
he did not state regarding the attestation of other witnesses the
trial court was of the view that the requirement of Section 68 of
the Evidence Act is not satisfied. But as found earlier the proof of
Will is not at all an issue in the present case because nobody has
any case that the first plaintiff obtained the property by virtue of
a Will. The will was executed by the predecessor in interest of
the transferor of the first plaintiff and as found earlier none of
the legatees under the Will have challenged it so far and hence
the challenge of the will by the defendant who is a stranger is
not all sustainable as per the settled position of law above
discussed. So the contention of the learned counsel with regard
to want of proof of the will and noncompliance of Section 68 of
the Evidence Act and Section 63 (c) of the Indian Succession Act
etc. is not at all acceptable.
30. Next is with regard to the identity of the property. The
main contention of the learned counsel for the plaintiffs in this
regard is that the question of identity was not at all raised in the
written statement apart from a flat denial in the written
statement of the first defendant that the plaintiffs is not the
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owner of the plaint schedule property and the church is not in
possession of the property and no right has been transferred to
the plaintiffs as per the settlement deed of the year 2007 and
further that the executant of the documents have no right over
the property. So there is no specific contention raised with
regard to the identity of the property as such.
31. According to the learned counsel for the defendant,
plaint schedule property is a part of item No.26 described as
plaint B schedule item No.1 of Ext.A6 having a total extent of 3
acres and 85 cents of property comprised in survey Nos.1178,
1137, 1123 and 443 which has been described as
"ÉIÞøÕµæÕùáOÞGÕᢠÉáùÕµÏá¢åµâ¿ß ²KÞÏߵ߿Má µ¿WÕÏíÉí
ÉáÄáÕWÉùOí Éáø ¥ÄßæÜ ØµÜÕcfÞùÞÝíºµ{ᢠºÎÏB{ᢠ¯dµ ÎâKá æØaí
®YÉJFí". According to the learned counsel, since there is no
specification as to the extent of properties out of the total 3
acres 85 cents in the four survey numbers how it has been
described in Ext.A7 as 60 cents in survey number 443 is not
discernible. So it is contended that the entire property allotted to
Joseph Rajan as per Ext.A7 ought to have been measured so as
to identify the plaint schedule property out of alleged 60 cents in
survey No.443. He would also contend that there is description
R.S.A.No.329/2022
regarding 'puravaka'. He also produced N.B.S. Malayalam -
English dictionary authored by Sri. C. Madhavan Pillai to show
that the 'purambokku' land is also included and since the entire
property is not measured the commissioner's report and plan
produced cannot be accepted to find that the plaint schedule
property has been identified. But the dictionary meaning of the
broad sea or open sea cannot be adopted as a description of the
property allotted to Thomas the predecessor in interest of the
vendor of the first plaintiff. The description of the property
would go to show that it includes the 'verumbattam' property
then 'puravaka' which are lying contiguous and survey numbers
of the properties have also been described in the schedule with
specific boundaries. It is also pertinent to note that the
commissioner's report and plan were marked through PW1
without any objection. No attempt was also made by the first
defendant to examine the commissioner and discredit the report
and plan. Exts.C2 and C2(a) are the commission report with the
sketch of Taluk Surveyor in which the surveyor has clearly
demarcated the plaint A schedule property having an extent of
2.075 cents. There is clear description in the commissioner's
report as to how the measurement was effected and the property
R.S.A.No.329/2022
was identified and located and commissioner has categorically
reported that on the northern side of the plaint schedule
property is the panchayat road and western side is the Vypin-
Munambam road and on the east and south are the properties of
Joseph and Xavier respectively.
32. Learned counsel for the defendants did not bring to my
attention any objection filed by them to the commissioner's
report and plan and it appears from the marking of the
commissioner's report and plan through PW1 that there was no
objection to the defendants to the commissioner's reprot and
plan. During cross examination of PW1, no question seen put
with respect to the commissioner's report and plan. So in effect
Ext.C2(a) plan demarcating the plaint schedule property remains
unchallenged. It is true that questions are seen put to the effect
that in survey No.443/4,5 obtained as per Ext.A6 60 cents is not
involved. But that is stoutly denied by PW1. It is also to be noted
that the trial court also found the title and possession of the
plaintiffs over the plaint schedule property but the court was not
inclined to decree the suit only for the reason of non-compliance
of Section 68 of the Evidence Act with regard to the proof of Will.
So the contention of the first defendant that the plaintiffs could
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not establish the identity of the plaint schedule property is not at
all sustainable.
33. A contention is also seems to have been raised by the
first defendant with regard to adverse possession. But it has
been concurrently found against the first defendant by the courts
below. As has been rightly found by the first appellate court the
first defendant has to first of all admit the title of the plaintiffs in
order to claim adverse possession. It has been found by the first
appellate court that there is no specific contention in the written
statement of the first defendant or the written statement of
defendants 3 and 4 about the actual date of entry into the plaint
schedule property or the commencement of the adverse
possession. The written statement of the first defendant would
go to show that his contention is that he has been conducting
fruit shop in the premises for the last more than 10 years and
before that his father was in possession and his father was
conducting business for more than 25 years. The decision
reported in Harihar Sahu v. State of Orissa and Anr [2017 KHC
4584]; Krishnamurthy Setlur (dead) by LRs v. O.V. Narasimha
Setty and other [2007 (3) SCC 569] were relied on by the first
appellate court to discard the plea of adverse possession. On a
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meticulous evaluation of the concurrent findings on the issue of
adverse possession against the defendants by the trial court as
well as the first appellate court, I am of the view that it has been
dealt with in a correct perspective and acquisition of right by
adverse possession has been rightly refused by the courts below.
So on a close scrutiny of the entire facts and circumstances I am
of the view that the plaintiffs could establish their right and title
over the plaint schedule property and defendants could not
establish any legal right to continue the possession of the plaint
schedule property. So the recovery of possession, permanent
prohibitory injunction as well as the mandatory injunction
granted by the first appellate court is only to be confirmed.
In the result, appeal is found to be devoid of any merit
and hence dismissed confirming the judgment and decree passed
by the first appellate court. In the facts and circumstances, there
is no order as to costs.
Sd/-
M.R.ANITHA
shg JUDGE
