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Kerala High Court
Balakrishnan Nair vs Gouri Amma (Died) on 3 December, 2025
2025:KER:93666
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
WEDNESDAY, THE 3RD DAY OF DECEMBER 2025/12TH AGRAHAYANA, 1947
RSA NO. 471 OF 2016
AGAINST THE JUDGMENT AND DECREE DATED 28.11.2015 IN AS
NO.69 OF 2013 OF THE SUB COURT, PERUMBAVOOR ARISING OUT OF
THE JUDGMENT AND DECREE DATED 31.08.2013 IN OS NO.270 OF
2012 OF THE MUNSIFF COURT, PERUMBAVOOR
APPELLANT/APPELLANT/2ND DEFENDANT:
BALAKRISHNAN NAIR
AGED 65 YEARS, S/O KRISHNAN NAIR, ARACKAL HOUSE,
KEEZHILLAM KARA, RAYAMANGALAM VILLAGE,
KUNNATHUNADU TALUK.
BY ADVS.
SHRI.A.JAYASANKAR
SRI.MANU GOVIND
SRI.SUNDARAM GOVIND
SHRI.S.SABARINADH
RESPONDENTS:PLAINTOFF AND DEFENDANTS 1 AND 3 TO 5:
1 GOURI AMMA (DIED)
EMERITUS, D/O KRISHNAN NAIR, ARACKAL HOUSE,
KEEZHILLAMKARA, RAYAMANGALAM VILLAGE,
KUNNATHUNADU TALUK-683541.
2 ARJUNAN NAIR (DIED)(LEGAL HEIRS IMPLEADED)
S/O KRISHNAN NAIR, ARACKAL HOUSE, KEEZHILLAMKARA,
RAYAMANGALAM VILLAGE-683541.
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R.S.A No.471 of 2016
2
3 RADHAMMA
AGED 63 YEARS, W/O GOPINATHAN NAIR, MULLACKAL
HOUSE, NEAR DHARMASASTHA TEMPLE, PERUMBAVOOR
KARA, PERUMBAVOOR VILLAGE-683542. (PRESENT
ADDRESS INCORPORATED)
(MRS.RADHAMMA GOPINATH,
C/O GOPINATH, MULLAPPILLY (H), EAST TEMPLE ROAD,
PERUMBAVOOR - 683542.)
4 GEETHA
AGED 55 YEARS, W/O JAYAN, D/O KRISHNAN NAIR, EAST
KADATHI, MOOVATTUPUZHA TALUK-686661.(TEMPORARY
ADDRESS INCORPORATED)
(GEETHA JAYAN
D/O KRISHNAN NAIR, ARACKAL HOUSE,
KEEZHILLAM P.O - 683541.)
5 NIRMALA SUDHAKARA
AGED 52 YEARS, W/O SUDHAKARAN, D/O KRISHNAN NAIR,
EDAPPILLY KAILAS BHAVAN, MANAKKAPADY, PONNEKARA
KARA, EDAPPALLY NORTH VILLAGE, KANAYANNUR TALUK-
682024.( PRESENT ADDRESS INCORPORATED)
(NIRMALA SUDHAKARAN
KAILAS (49/1293 g) MRA 12, MANAKKAPARAMBU ROAD,
EDAPALLY, ERNAKULAM, PIN - 682024.)
(THE CAUSE TITLE OF RSA AMENDED BY INCORPORATING
THE PRESENT ADDRESS OF RESPONDENTS 3 TO 5 AS PER
ORDER DATED 20.03.2017 IN I.A NO.619 OF 2017)
6 PUSHPAKUMARI
AGED ABOUT 52 YEARS, D/O LATE GOURI AMMA, MANOJ
BHAVAN, ARAKKAL VEEDU, KEEZHILLAMKARA,
RAYAMANGALAM VILLAGE 683541.
7 JAYASREE
AGED ABOUT 47 YERS, D/O LATE GOURI AMMA, MANOJ
BHAVAN (ARAKKALVEEDU) KEEZHILLAMKARA,
RAYAMANGALAM VILLAGE-683541.
8 MANOJ KUMAR
AGED ABOUT 42 YEARS, S/O LATE GOURI AMMA, MANOJ
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R.S.A No.471 of 2016
3
BHAVAN (ARAKKALVEEDU) KEEZHILLAMKARA,
RAYAMANGALAM VILLAGE-683541.
*9 ADDL.R9 SMT.RADHAMMA ARJUNAN NAIR,
AGED 66 YEARS, W/O.ARJUNAN NAIR, RESIDING AT
ARAKKAL HOUSE,KEEZHILLAMKARA, RAYAMANGALAM
VILLAGE.
*10 ADDL.R10 PRAVEENKUMAR A.,
AGED 40 YEARS, S/O.ARJUNAN NAIR, RESIDING AT
ARAKKAL HOUSE,KEEZHILLAMKARA, RAYAMANGALAM
VILLAGE.
*11 ADDL.R11 PRAMEELA,
AGED 37 YEARS
W/O.AJITH NALINAKSHAN,RESIDING AT ARAKKAL
HOUSE,KEEZHILLAMKARA, RAYAMANGALAM VILLAGE.
(THE LEGAL HEIRS OF THE DECEASED RESPONDENT NO.2
ARE IMPLEADED AS ADDITIONAL RESPONDENTS 9 TO 11
AS PER ORDER DATED 09.08.2016 IN IA.NO.1100/2016)
BY ADV
SRI.G.RAJAGOPAL, FOR R6
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD
ON 03.12.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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R.S.A No.471 of 2016
4
EASWARAN S., J
--------------------------------
R.S.A No.471 of 2016
-------------------------------
Dated this the 3rd day of December, 2025
JUDGMENT
The 2nd defendant in a suit for cancellation of
document and for partition has come up with this appeal
questioning the concurrent findings rendered by the courts
below.
2. The brief facts necessary for the disposal of
this appeal are as follows:-
The 1st respondent / plaintiff preferred a suit for
cancellation of document and for partition, contending that
the extent of 61 cents belong to her father and mother is
open for partition. Originally the property belong to the
father of the plaintiff and the defendants as per the
document Nos.3538/1959 and 1276/1959 of Perumbavoor
SRO. Later, the mother also derived right title and interest
over a 20 cents as per document No.3413/1963. The
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plaintiff being the daughter was excluded from the shares,
when her father and mother executed a registered gift
deed on 07.01.1985 before the Sub Registrar Office,
Perumbavoor. It is contended that the plaintiff's father did
not sign the Will, and that the Will has not taken into effect.
The plaintiff's father expired on 08.05.1997 and the mother
expired on 14.04.2012. The claim for partition was made on
21.09.2012, which was refused and hence the suit. The
defendants entered appearance and resisted the suit by
contending that going by the registered Will, executed by
the father and mother of the plaintiff in the year 1985, the
plaintiff had no right title and interest over the plaint
schedule property and thus precluded from seeking
partition. Out of the total extent of property, held by the
father and mother of the plaintiff, 61 cents was given to the
appellant / the 2nd defendant and 20 cents to the 1st
defendant. Out of the 61 cents, 20 cents was sold by the
mother during her life time and the 2 nd defendant is in
possession of remaining 41 cents. It is further contended
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that the Will being a registered Will, was validly executed
and that the father of the plaintiff and the defendants was
having sound health and a proper mental state of affairs for
execution of the Will. On behalf of the plaintiff, Exts.A1 to
A4(a) were produced and PW1 was examined. On behalf of
the defendants, Ext.B1was produced and DW1 and DW2
were examined. The trial court on appreciation of the oral
and documentary evidence adduced by the parties, came to
the conclusion that the defendants have not proved the
execution of the Will inasmuch as the attesting witness,
who was examined by them did not speak about the 2 nd
attesting witness, who has signed the Will. Aggrieved, the
appellant herein preferred A.S No.69/2013 before the Sub
Court, Perumbavoor, and by judgment dated 28.11.2015,
the appeal was dismissed and hence the present appeal.
3. On 27.09.2016, while admitting this appeal,
this Court framed the following substantial questions of
law:-
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(i) Did the courts below omit to follow the dictum
laid down in K.M.Varghese and Others v.
K.M.Ommen (ILR 1994(1) Kerala 372) that law
does not insist that the two attesting witnesses
should be present at the same time when the Will
is executed leads to the conclusion that the Will is
properly executed?
(ii) Are the findings of the courts below vitiated
by omission to consider important and relevant
piece of evidence adduced in the case?
4. Heard Shri.A.Jayasankar, the learned
counsel appearing for the appellant and Shri.G.Rajagopal,
the learned counsel appearing for respondents 1 and 6.
5. The learned counsel for the appellant
submitted that the point raised in the appeal is squarely
covered by the decision of this Court in Saiby v. Mary
[2025 (5) KHC 482]. He further pointed out that the 2 nd
attesting witness was no more on the date of filing of the
suit and he expired on 01.06.1989, as evident from the
death certificate produced along with the memorandum of
appeal and through an application under Order 41 Rule 27
of the Code of Civil Procedure, 1908. Referring to the oral
testimony of DW1, it is pointed out by the learned counsel
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appearing for the appellant that there was no specific
question raised before the 1st attesting witness as regards
the absence of any signature of the 2nd attesting witness in
the Will. It is pointed out that it is not a requirement of law
that 1st attesting witness should have personally known
about the 2nd attesting witness.
6. Per contra, Shri.G.Rajagopal, the learned
counsel appearing for respondents 1 and 6 contended that
since there was no case pleaded in the written statement
that Ext.B1 is the last Will executed by the father of the
plaintiff and the defendants, the claim based on Ext.B1 Will
should fail. In support of his contention relied on the
decision of the Bombay High Court in Rangu Vithoba
and Others v. Rambha Dina and Another [AIR 1967
BOM 382], followed by this Court in Padmanabha Hedge
v. Suneetha J. Rao [2007 (2) KLT 209]. The learned
counsel further referred to the decision of the Hon'ble
Supreme Court in Janki Narayan Bhoir v. Narayan
Namdeo Kadam [2003 (2) SCC 91] and contended that
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the requirement of law is that the 1st attesting witness
should have spoken about the attestation of the 2nd
attesting witness and in the absence of the same, the Will
cannot be held to be valid.
7. I have considered the rival submissions
raised across the Bar, perused the judgments rendered by
the courts below and also the records of the present case.
8. The question which falls for consideration
is whether Ext.B1 Will is valid in the eyes of law. No doubt,
the learned counsel for respondents 1 and 6 supported the
findings rendered by the courts below based on the
decision of the Hon'ble Supreme Court in Janki Narayan
Bhoir v. Narayan Namdeo Kadam [2003 (2) SCC 91].
The paragraph 10 of the said judgment is extracted here
under:-
10. S.68 of the Evidence Act speaks of as to how a
document required by law to be attested can be
proved. According to the said Section, a document
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 there
be an attesting witness alive, and subject to the
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process of the Court and capable of giving evidence. It
flows from this Section that if there be an attesting
witness alive capable of giving evidence and subject to
the process of the Court, has to be necessarily
examined before the document required by law to be
attested can be used in an evidence. On a combined
reading of S.63 of the Succession Act with S.68 of the
Evidence Act, it appears that a person propounding
the Will has got to prove that the will was duly and
validly, executed. That cannot be done by simply
proving that the signature on the Will was that of the
testator but must also prove that attestations were
also made properly as required by clause (c) of S.63 of
the Succession Act. It is true that S.68 of the Evidence
Act does not say that both or all the attesting
witnesses must be examined. But at least one attesting
witness has to be called for proving due execution of
the Will as envisaged in S.63. Although S.63 of the
Succession Act requires that a Will has to be attested
at least by two witnesses, S.68 of the Evidence Act
provides that a document, which is required by law to
be attested, shall not be used as evidence until one
attesting witness at least has been examined for the
purpose of proving its due execution if such witness is
alive and capable of giving evidence and subject to the
process of the Court. In a way, S.68 gives a concession
to those who want to prove and establish a will in a
Court of law by examining at least one attesting
witness even though will has to be attested at least by
two witnesses mandatorily under S.63 of the
Succession Act. But what is significant and to be noted
is that one attesting witness examined should be in a
position to prove the execution of a will. To put in
other words, if one attesting witness can prove
execution of the will in terms of the clause (c) of S.63,
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viz., attestation by two attesting witnesses in the
manner contemplated therein, the examination of the
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 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 simple reason
that the execution of the will does not merely mean
the signing of it by the testator but it means fulfilling
and proof of all the formalities required under S.63 of
the Succession Act. Where one attesting witness
examined to prove the will under S.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. Where one attesting witness is examined and
he fails to prove the attestation of the Will by the other
witness there will be deficiency in meeting the
mandatory requirements of S.68 of the Evidence Act."
9. In Saiby v. Mary [2025 (5) KHC 482], this
Court was called upon to reconcile the conflict between the
various decisions of the Hon'ble Supreme Court on this
point. Ultimately, following the decision of the Hon'ble
Supreme Court in Gopal Krishan and Others v. Daulat
Ram and Others [2025 (2) SCC 804], this Court concluded
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that when Section 63(c) of the Indian Succession Act, 1925,
provides for alternatives to the propounder of the Will to
prove its execution, the requirement of the law will be met
if atleast one attesting witness is examined in terms of
Section 68 of the Indian Evidence Act, 1872. In the present
case, one additional fact which should be noted is that the
2nd attesting witness died on 01.06.1989. The requirement
to examine the 2nd attesting witness has not arisen
specifically in the present case. The requirement of Section
69 of the Indian Evidence Act, would arise only if both the
attesting witnesses are not found to be alive. In these
circumstances, this Court is inclined to think that the
courts below erred egregiously in not following the
principles governing under Section 71 of the Indian
Evidence Act. That apart, when the Hon'ble Supreme
Court has specifically held that the requirement of law will
be met once an attesting witness is examined to satisfy the
mandate of Section 65 of the Indian Evidence Act, which is
reiterated by this Court in Saiby (supra), it is inevitable
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for this Court to answer the substantial questions of law
framed in the memorandum of appeal in favour of the
appellant.
10. Resultantly, the substantial questions of
law are answered as follows:-
(a) The courts below omitted to follow the dictum in
Varghese v. Ommen [1994 (2) KLT 620]. In the light of
the decision rendered by this Court in Saiby (supra), it is
held that Ext.B1 Will stands proved by the defendants.
(b) The findings of the courts below are vitiated for
omission to consider the importance of material evidence
adduced in the present case, especially since the courts
below failed to notice the fact that DW1 has specifically
spoken about the execution of Ext.B1 Will.
Consequently, the judgments rendered by the
Munsiff's Court, Perumbavoor, in O.S No.270/2012, as
affirmed by the Sub Court, Perumbavoor, in A.S
No.69/2013 are reversed. It is held that the plaint schedule
properties are not available for partition and accordingly,
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the suit will stand dismissed. The parties are directed to
suffer their respective costs.
Sd/-
EASWARAN S.
JUDGE
AMR
