Kerala High Court
Lissy vs Salomy on 3 April, 2024
R.S.A.No.1024/2015 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
WEDNESDAY, THE 3RD DAY OF APRIL 2024 / 14TH CHAITHRA, 1946
RSA NO. 1024 OF 2015
AGAINST THE DECREE & JUDGMENT DATED 30.01.2015 IN AS NO.52
OF 2012 OF II ADDITIONAL DISTRICT & SESSIONS
COURT,THODUPUZHA ARISING OUT OF THE DECREE AND JUDGMENT
DATED 28.03.2012 IN OS NO.45 OF 2006 OF SUB COURT,
THODUPUZHA
APPELLANT/APPELLANT/2ND DEFENDANT:
LISSY
AGED 47 YEARS
W/O LATE PAUL, CHITTETHEKUDIYIL HOUSE (THAZHATHOTTU)
THOMMANKUTHU KARA, VANNAPURAM VILLAGE, THODUPUZHA TALUK.
BY ADV SRI.G.SREEKUMAR (CHELUR)
RESPONDENTS/RESPONDENTS/PLAINTIFFS AND DEFENDANTS 3 TO 5:
1 SALOMY, AGED 61 YEARS
W/O M.J.MATHEW, MARIKALAYIL HOSUE, PULINTHANAM KARA,
ENANALLOOR VILLAGE, MUVATTUPUZHA TALUK-685603.
2 SANTHA,
AGED 58 YEARS
W/O LATE MATHUKUTTY, KEELANCHIRANGARA HOUSE,
MATHIRAPALLY KARA, MATHIRAPALLY VILLAGE, KOTHAMANGALAM
TALUK-685603.
3 MARY
AGED 63 YEARS
W/O LATE ABRAHAM, CHITTETHEKUDIYAL HOUSE, (THAZHATHOTU),
THOMMANKUTHU KARA, VANNAPURAM VILLAGE, THODUPUZHA TALUK-
685603.
4 BINU, AGED 43 YEARS
S/O LATE ABRAHAM, CHITTETHEKUDIYIL HOUSE, (THAZHATHOTU),
THOMMANKUTHU KARA, VANNAPURAM VILLAGE, THODUPUZHA TALUK-
685603.
R.S.A.No.1024/2015 2
5 MINU
AGED 38 YEARS
D/O LATE ABRAHAM, CHITTETHEKUDIYIL HOSUE, (THAZHATHOTU),
THOMMANKUTHU KARA, VANNAPURAM VILLAGE, THODUPUZHA TALUK-
685603.
BY ADVS.
SRI.P.M.JOHNY
SRI.ARUN THOMAS
SRI.JENNIS STEPHEN
SRI.SANTHOSH MATHEW
SRI.SATHISH NINAN
AJITH VISWANATHAN
P.VISWANATHAN (SR.)(K/000283/1986)
P.VISWANATHAN (SR.)
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD
ON 13.03.2024, THE COURT ON 03.04.2024 DELIVERED THE
FOLLOWING:
R.S.A.No.1024/2015 3
"C.R"
A. BADHARUDEEN, J.
================================
================================
Dated this the 3rd day of April, 2024
Second defendant in O.S.No.45/2006 on the files of Sub
Court, Thodupuzha is the appellant herein and she assails decree
and judgment in the above case dated 28.03.2012, as confirmed in
A.S.No.52/2012 on the files of IInd Additional District Court,
Thodupuzha, as per judgment dated 20.01.2015. The respondents
herein are plaintiffs and defendants 3 to 5.
2. Heard the learned counsel appearing for the
appellant/2nd defendant and the learned counsel appearing for
plaintiffs 1 and 2, who are respondents 1 and 2 herein. Perused the
records of trial court as well as the appellate court.
3. I shall refer the parties in this Second Appeal as to their
status before the trial court as `plaintiffs' and `defendants'
hereinafter for convenience.
4. Plaintiffs, who are the daughters of one late Mathew,
filed Suit seeking partition of the plaint schedule property, left by
Mathew, who died intestate on 25.12.1993, contending that
plaintiffs and defendants viz., Abraham Mathew and Paul
(plaintiffs' brothers) are entitled to get equal shares in the plaint
schedule property.
5. The main contention raised by the defendants, inter
alia, is that Mathew executed a Will in favour of Abraham and
Paul thereby transferred the entire extent of property and no
property is available for partition.
6. Trial court ventured the matter. PWs 1 to 4 were
examined and Exhibits A1 to A10 were marked on the side of the
plaintiffs. DW1 to DW8 were examined and Exhibits B1 to B9
were marked on the side of the defendants. Exts.X1 to X4(c) also
were marked as Court exhibits. After appreciating the evidence at
length, the trial court found that testator was not having sound
mind for execution of Ext.B1 Will and the propounders had not
succeeded in adducing satisfactory evidence to dispel the
suspicion, surrounding the Will deed. Accordingly the trial court
rejected the claim raised by defendants 1 and 2 on the strength of
Ext.B1 Will. Consequently, excluding the property covered by
Ext.B8 sale deed No.3008/1986 of SRO, Karikode, whereby
Mathew sold 1 Acre 2 cents of property to one Philipose, the
remaining property ordered to be partitioned in equal shares
among the plaintiffs and the legal heirs of Abraham Mathew and
Paul. Though appeal was filed and challenged the veracity of the
verdict of the trial court, the appellate court also concurred the
view of the trial court and confirmed the same.
7. At the time of admission as per order dated 24.11.2015
my learned predecessor admitted this appeal on the questions of
law framed in the Memorandum of Second Appeal. Since
formulation of substantial question of law is mandatory to admit
and hear the Second Appeal substantial questions of law are
formulated as under:
(1) Whether Ext.B1 Will is proved as mandated under
Section 69 of the Evidence Act?
(2) Whether the present Suit is bad for non joinder of
necessary parties, in view of Rule 228 r/w Rule 230 of the Kerala
Civil Rules of Practice?
(3) What is the condition precedent to mandate compliance
of Rule 228 r/w Rule 230 of the Kerala Civil Rules of Practice?
(4) Whether the trial court and the appellate court
overlooked Ext.A6 partition deed to deny 1/3 right over the plaint
schedule property belonged to the mother, to Abraham and Paul,
relinquished by her?
8. The learned counsel for the 2 nd defendant argued that
none of the grounds found by the trial court and affirmed by the
appellate court to disbelieve the execution of Ext.B1 Will would
sustain and the finding that the Will is surrounded by doubtful
circumstances could not be justified. The learned counsel dealt
with each and every finding of the trial court and appellate court,
particularly, referring to the evidence of DW7, PW3, PW1 and
DW1.
9. Refuting this contention, the learned counsel appearing
for the plaintiffs supported the verdicts of the trial court as well as
the appellate court, holding the view that Ext.B1 was not proved
properly and the same is in the midst of series of doubtful
circumstances. Therefore, Ext.B1, an unregistered Will, alleged to
be executed by the testator, who admittedly was under treatment
for cancer before the date of execution and he died on the fifth day
of execution of Ext.B1 Will, could not confer title upon the
propounders. Accordingly, the learned counsel for the plaintiffs
supported the concurrent verdicts.
10. In this matter, there is no dispute that Mathew owned
the plaint schedule property and he sold a portion of the same as
per Ext.B8 sale deed in the year 1987. Ext.B1 Will deed is dated
20.12.1993 and as per Ext.A1 death certificate Mathew died on
25.12.1993. Thus the gap between execution of Ext.B1 Will and
date of death of the testator is exactly 5 days. The trial court
disbelieved the very execution of the Will, in a case, where both
attesting witnesses to the Will, admittedly died at the time of
evidence, though they were alive at the time when the Suit was
filed. In such circumstances, the mode of proof of the Will shall
be in accordance with Section 69 of the Indian Evidence Act,
which provides as follows:
"69. 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."
11. Thus if no such attesting witnesses can be found to
prove a Will in terms of Section 68 of the Indian Evidence Act,
Will must be proved in tune with the mandate of Section 69 of the
Indian Evidence Act. 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. In this matter, evidence of DW7 is
relied on by the propounders to prove due execution of Ext.B1.
Admittedly Ext.B1 is not a registered Will. It was alleged to be
executed by the testator at the office of DW7, who is a practicing
lawyer in Moovattupuzha by name Advocate V.G.Alias. His
evidence is that he had been an Advocate and Notary practising in
Muvattupuzha and he attested Ext.B1 Will deed. It is relevant to
note regarding the putting of signature by the testator as well as
witnesses, DW7 did not give direct evidence and a typical leading
question with a definite answer was put to the mouth of the
witness and got it answered in the affirmative. According to DW7,
the testator was the elder brother of his Senior Advocate T.S.Issac
and he came to the office in Moovattupuha and executed Ext.B1
Will deed. It is surprising to note that during cross examination,
DW7 given evidence that the testator as well as the witnesses were
introduced by his Senior Advocate T.S.Issac and he had not
counter checked the said fact. The testator as well as the witnesses
were not known to him, directly. Thus by the evidence of DW7,
the conditions stipulated in Section 69 of the Evidence Act are not
satisfied. None of the witnesses stated that in Ext.B1 Will deed
was attested by one attesting witness in his handwriting and the
signature of the executant is in the handwriting of the executant. It
is argued by the learned counsel for the 2nd defendant that the
narration in Ext.A6, highlighting inheritance by the parties,
therein, would be in no way concealed in Ext.B1 and inheritance
might be on the strength of Ext.B1without mentioning the same.
12. In this context, it is relevant to note that even though
Will deed was executed as on 20.12.1993, a partition deed was
executed in between Abraham Mathew, Paul and mother of
Abraham, Paul and wife of Mathew on 20.09.1994. Partition of the
plaint schedule property was in between Abraham and Paul and in
Ext.A6 the mother, who also was a party being sharer, declared
that she did not want share in the property. It is one of the main
reasons pointed out by the trial court and the appellate court to
disbelieve Ext.B1 Will deed, since execution of Ext.A6 was not at
all necessary, if there was Ext.B1 prior to that. It is relevant to
note that if Abraham Mathew and Paul, who were sure that as per
Ext.B1 Will the property bequeathed upon them, the very
execution of Ext.A6 is unwarranted. In fact, this vital aspect
alone doubts the very execution of Ext.B1 prior to Ext.A6
and this aspect probabalises that Ext.B1 is one subsequently
created.
13. Regarding the physical state of the testator is
concerned, PW3 was examined and PW3, (who is none other than
Dr.Babu Varghese who attended the testator at Paliative Care
Centre) given evidence stating that late Mathew died due to cancer
and Mathew was known to him. Though in the evidence of PW3
he did not state as to whether Mathew was totally bed ridden prior
to his death, PW3's evidence would suggest that Mathew
undergone surgery for cancer treatment and he was under the
traumas of cancer during the relevant time of execution of the
Will. It is relevant to note that as per Ext.B1 Will, it has been
stated that the Will was entrusted with the mother, but it was not
produced before the court of law by the mother, because no such
entrustment. It is pertinent to note that if the mother was entrusted
with Ext.B1, the mother would never execute Ext.A6, since in
such circumstance execution of Ext.B1 is totally unnecessary.
14. Apart from this evidence, the other witnesses in a way
admitted the fact that Mathew was laid up due to cancer, during
the period of execution of Will and prior to that. It is pertinent to
note that Ext.B1 was attested by DW7. Bare perusal of Ext.B1
does not show the manner in which DW7 attested the Will. It is
mandatory for a Notary Public to maintain registers to register the
works done by the Notary Public showing the attestation of a
document with serial number and year, description of the
document, the volume of the book such attestation was registered,
fee collected for the same along with counterfoil of the fee receipt
number issued thereof. On perusal of Ext.B1 these vital aspects
are lacking and the same also create doubts in the execution of
Ext.B1 by Mathew as on 20.12.1993.
15. Thus it is held answering the first question of law that
the legal heirs of Abraham Mathew and Paul not succeeded in
proving execution of Ext.B1 Will, as mandated under Section 69
of the Evidence Act and Ext.B1 Will is surrounded by doubtful
circumstances as discussed.
16. Coming to the second and third questions of law, as
rightly pointed out by the learned counsel for the 2 nd defendant, as
per Rule 228 of the Civil Rules of Practice, in every suit for
partition, all persons entitled to shares or to maintenance shall be
joined as parties; and if it is alleged that any co-owner has
alienated any portion of the joint property or his interest therein in
circumstances rendering the alienation not binding on the co-
owners, the alienee shall be made a party to the suit and the party
making the allegation shall set out the particulars of the alleged
alienation in his pleading. Further Rule 230 deals with the matters
to be determined at hearing. It has been proved that at the hearing
of the suit, the Court shall determine who are the persons
interested in the joint property, their respective shares and interests
therein, whether there are any outstanding debts and liabilities
which should be satisfied out of the joint property, and, if any
allegation has been made in this behalf, whether any person has
alienated any portion of the property in circumstances rendering
the alienation not binding on the other co-owners or is liable to
account for any particular property in his possession or in any
other manner. No such question as aforesaid shall be referred to or
dealt with by a Commissioner appointed to take an account or
divide any property and if any such question arises before him, he
shall reserve the same for the determination of the Court.
17. According to the learned counsel for the 2nd defendant,
compliance of Section 228 and 230 is mandatory in this case,
where the portion of the plaint schedule property was transferred
as per B series documents in favour of some witnesses examined
on the side of the defendants.
18. Dispelling this argument the learned Senior Counsel
appearing for the plaintiffs submitted that impleadment of
subsequent alienees would become mandatory only when there is
an allegation to that effect. It is submitted by the learned counsel
for the plaintiffs further that in the written statement no such plea
raised as an allegation and therefore plaintiffs had no opportunity
to comply Rule 228 and 230 of the Civil Rules of Practice.
Therefore, the shares to be allotted to the purchasers, out of the
property entitled by the defendants, shall be relegated to the final
decree stage. The learned counsel appearing for the 2 nd defendant
also conceded that no allegation in this regard seen raised in the
written statement.
19. Regarding the mandate of Rule 228 is concerned, the
same would be in operation only when the co-owners, who had
alienated the plaint schedule property or portion thereof, would
allege and raise such a plea, to the knowledge of the plaintiff/s and
in the absence of such specific knowledge to the plaintiff/s, he/they
could not get an opportunity to do so. Therefore, even though as
per Rule 228 r/w 230 of the Civil Rules of Practice, impleadment
of alienees of the co-owner/s and hearing them are mandatory, the
same is possible only when such an allegation is made known to
the plaintiff/s before starting trial. So alleging or putting
knowledge to the plaintiff/s regarding the alienation by co-owner
is a condition precedent to mandate compliance of Rule 228/ r/w
230 of the Civil Rules of Practice. In the case at hand, no such
plea raised in the written statement or the said aspect not made
known to the plaintiffs, and, therefore, Suit could not be held as
bad for non compliance of Rule 228 and 230 of the Civil Rules of
Practice.
20. It is discernible by Ext.A6 that at the time when the
property got partitioned, mother relinquished her share. According
to the learned counsel for the 2nd defendant, the relinquishment
tantamounts to release of the said right in favour of Abraham and
Paul. Therefore, 1/3 right entitled by the mother to be partitioned
in between the legal heirs of Abraham and Paul and the
preliminary decree passed by the trial court and confirmed by the
appellate court would require modification accordingly.
21. The learned Senior Counsel appearing for the plaintiffs
would submit that on reading Ext.A6, the same in no way recites
that the mother relinquished her right in favour of Abraham and
Paul and the mother executed Ext.A6 believing that the entire
property was inherited by her, Abraham and Paul and the mother
did not notice the inheritance by the plaintiffs, members of the
same family, who would get benefit as per the ratio of the decision
in [AIR 1986 1011], Mary Roy v. State of Kerala.
22. On reading Ext.A6, the same recites that on the death of
Mathew the property devolved upon the mother and 2 male
children. When the mother abandoned her right, that doesn't mean
that the right directly transferred in favour of Abraham and Paul
and the relinquishment to be understood in the sense that the
property shall go in favour of the legal heirs, otherwise entitled.
Therefore, it could not be held that in view of Ext.A6, the shares of
the mother was relinquished in favour of the defendants. In such
view of the matter, the judgment of the trial court granting ¼ share
to plaintiffs 1 and 2 and legal heirs of Abraham and Paul only to be
justified. Fourth substantial question of law answered accordingly.
For the foregoing reasons, the Second Appeal fails and is
dismissed accordingly.
All the interim orders in this Second Appeal stand vacated
and all pending Interlocutory Applications stand dismissed.
It is made clear that allotment of shares to subsequent
purchasers shall be considered at the final decree proceedings from
the property to be allotted in favour of the defendants,
proportionally.
Sd/- (A.BADHARUDEEN, JUDGE)
rtr/
