Kerala High Court
K.S.Dinachandran vs Shyla Joseph on 10 January, 2025
2025:KER:672
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
FRIDAY, THE 10TH DAY OF JANUARY 2025 / 20TH POUSHA, 1946
RFA NO. 915 OF 2012
AGAINST THE DECREE AND JUDGMENT DATED 14.06.2012 IN O.S. NO.633 OF 2011 ON
THE FILES OF THE II ADDITIONAL SUB COURT,ERNAKULAM
APPELLANT/1ST DEFENDANT IN THE SUIT:
K.S.DINACHANDRAN
S/O. LATE N.S.SREEDHARAN, SREESYLAM, KALAVATHU ROAD,
KARUMALIPARAMBU, PALARIVATTOM P.O., KOCHI-682 025.
BY ADVS.
SRI.S.VINOD BHAT
SRI.LEGITH T.KOTTAKKAL
RESPONDENTS/1ST RESPONDENT IS THE PLAINTIFF IN THE SUIT & RESPONDENTS 2 TO 8
ARE THE DEFENDANTS 2 TO 8 IN THE SUIT:
1 SHYLA JOSEPH
W/O. JOSEPH, RESIDING AT ALASIKKODATH HOUSE, NEAR CIVIL
STATION, KALLUKUZHI, KAKKANAD, KOCHI-682 030.
2 N.S.JAYAKUMAR
S/O. LATE SREEDHARAN, NANDANAM, CC NO.XXXII/1310(C-D),
KALAVATH ROAD, PALARIVATTOM, KOCHI-682 025.
3 MAYA EKANATHAN
W/O. EKANATHAN, MIDHUNAM, KALAVATH ROAD, PALARIVATTOM,
KOCHI-682 025.
4 JAYASREE VALSAN
W/O. VALSAN & D/O. LATE N.S.SREEDHARAN, ARAKKYAKADAVU HOUSE,
KALAVATHU ROAD, KRISHNAN MOOPPER JUNCTION, PALARIVATTOM P.O.,
KOCHI-682 025.
5 GEETHA VISWANATHAN
W/O. LATE DR.VISWANATHAN AND D/O. LATE N.S.SREEDHARAN,
KARUMALIPARAMBU, KALAVATHU ROAD, KRISHNAN MOOPPER JUNCTION,
PALARIVATTOM, KOCHI-682 025.
6 BABY BABU (DIED)
W/O. LATE K.G.BABU & D/O. LATE N.S.SREEDHARAN, THEETHEL,
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R.F.A. Nos. 915 of 2012 & 82 of 2013
2
KALATHIPARAMBIL HOUSE, PALLURUTHY, KOCHI-682 006.
7 AMBILI ASOKAN
W/O. T.B.ASOKAN, THOPPIL HOUSE, OKKAL P.O., PERUMBAVOOR,
PIN-683 550.
8 KALA SASIKUMAR
W/O. SASIKUMAR, SREERAGAM, VALAYANCHIRANGARA P.O.,
PERUMBAVOOR, PIN-683 556.
ADDL R9 NITHA K.B.,
AGED 40 YEARS, D/O.BABY BABU , KALATHIPARAMPIL, HOUSE,
PALLURUTHY, KOCHI- 682006 (nithakb @ gmail.com)
ADDL R10 NITHIN K.B.,
AGED 38 YEARS, S/O.BABY BABU , KALATHIPARAMPIL,
HOUSE,PALLURUTHY, KOCHI- 682006 ([email protected])
(THE LEGAL HEIRS OF THE DECEASED 6TH RESPONDENT ARE IMPLEADED
AS ADDITIONAL RESPONDENT 9 AND 10 VIDE ORDER DATED 15/2/2022
IN IA NO.1/2020)
R1 BY ADV.
SRI.K.R.VINOD
R2,R3, R5 TO R8 BY ADVS.
SRI.P.N.SASIDHARAN
SMT.C.A.ANUPAMA
R4 BY ADVS.
SRI.N.M.MOHAMMED AYUB
SRI.P.V.SHAMSUDDIN
THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 16.12.2024,
ALONG WITH R.F.A. NO.82/2013, THE COURT ON 10.01.2025 DELIVERED THE
FOLLOWING:
2025:KER:672
R.F.A. Nos. 915 of 2012 & 82 of 2013
3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
FRIDAY, THE 10TH DAY OF JANUARY 2025 / 20TH POUSHA, 1946
RFA NO. 82 OF 2013
AGAINST THE DECREE AND JUDGMENT DATED 14.06.2012 IN O.S. NO.633 OF 2011 ON
THE FILES OF THE II ADDITIONAL SUB COURT, ERNAKULAM
APPELLANTS/DEFENDANTS 2, 3 & 5 TO 8:
1 N.S.JAYAKUMAR
AGED 45 YEARS
S/O. LATE N.S.SREEDHARAN, NANDANAM, C.C. NO.XXXII/1310(C-D)
KALAVATHU ROAD, PALARIVATTOM PO, KOCHI-25.
2 MAYA EKANATHAN
AGED 47 YEARS
W/O. EKANATHAN, MIDHUNAM, KALAVATHU ROAD, PALARIVATTOM PO,
KOCHI-25.
3 GEETHA VISWANATHAN
AGED 59 YEARS
W/O. LATE DR.VISWANATHAN & D/O.LATEN.S.SREEDHARAN
KARUMALIPARAMBIL, KALAVATHU ROAD, KRISHNAN MOOPPER JN,
KOCHI-25.
4 BABY BABU (DIED)
AGED 58 YEARS
W/O. LATE K.G.BABU & D/O.LATE N.S.SREEDHARAN, THEETHEL,
KALATHIPARAMBIL HOUSE, PALLURUTHI PO KOCHI-6.
5 AMBILY ASOKAN
AGED 54 YEARS, W/O.T.B.ASOKAN
THOPPIL HOUSE, OKKAL P.O., PERUMBAVOOR, ERNAKULAM DISTRICT
6 KALA SASIKUMAR
AGED 56 YEARS
W/O. SASIKUMAR, SREERAGAM, VALAYANCHIRANGARA P.O.
PERUMBAVOOR, ERNAKULAM DISTRICT.
ADDL A7 NITHA K.B.
D/O.BABU, SHEETHAL, KALATHILPARAMBIL HOUSE, PALLURUTHY
P.O.,KOCHI -6,
PRESENTLY RESIDING, 4659 235 TH PL SE SAMMAMISH WA 98075-4500
UNITED STATES, REPRESENTED BY POWER OF ATTORNEY HOLDER
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R.F.A. Nos. 915 of 2012 & 82 of 2013
4
N.S.JAYAKUMAR, AGED 55 YEARS, S/O.LATE N.S.SREEDHARAN,
NANDANAM, C.C.NO.XXXII /1310(C-D)KALAVATHU ROAD, PALARIVATTOM
P.O., KOCHI -25.
ADDL A8 NITHIN K.B.
S/O.BABU, SHEETHAL, KALATHILPARAMBIL HOUSE, PALLURUTHY
P.O.,KOCHI -6,
PRESENTLY RESIDING, BLK 32, UNIT 08-222, EUNOS
CRESENT,SINGAPORE 400032, REPRESENTED BY POWER OF ATTORNEY
HOLDER N.S.JAYAKUMAR, AGED 55 YEARS, S/O.LATE N.S.SREEDHARAN,
NANDANAM, C.C.NO.XXXII /1310(C-D) KALAVATHU ROAD,
PALARIVATTOM P.O., KOCHI -25.
(LEGAL HEIRS OF THE DECEASED 4TH APPELLANT ARE IMPLEADED AS
ADDITIONAL APPELLANTS NOS. 7 & 8 AS PER ORDER DATED
10.11.2022 IN I.A 1/2022.)
BY ADVS.
S.SREEKUMAR (SR.)
SRI.P.N.SASIDHARAN
SRI.C.A.ANUPAMAN
RESPONDENTS/PLAINTIFF & DEFENDANTS 1 & 3:
1 SHYLA JOSEPH
AGED 57 YEARS, W/O JOSEPH,
RESIDING AT ALASIKKODATHU HOUSE, NEAR CIVIL STATION
KALLUKUZHI, KAKKANAD, KOCHI-30.
2 K.S. DINACHANDRAN
AGED 49 YEARS
S/O. LATE N.S.SREEDHARAN, SREESYLAM, KALAVATHU ROAD,
KARUMALIPARAMBU, PALARIVATTOM PO, KOCHI-25
3 JAYASREE VALSAN
AGED 60 YEARS
W/O. VALSAN & D/O.LATE N.S.SREEDHARAN, ARAKKYAKADAVU HOUSE,
KALAVATHU ROAD, KRISHNAN MOOPPER JUNCTION, PALARIVATTOM,
KOCHI-25.
R1 BY ADV.
SRI.K.R.VINOD
R2 BY ADVS.
SRI.LEGITH T.KOTTAKKAL
SRI.S.VINOD BHAT
R3 BY ADV.
SRI.N.M.MOHAMMED AYUB
THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 16.12.2024,
ALONG WITH R.F.A. NO.915/2012, THE COURT ON 10.01.2025 DELIVERED THE
FOLLOWING:
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R.F.A. Nos. 915 of 2012 & 82 of 2013
5
"C.R"
COMMON JUDGMENT
Dated this the 10th day of January, 2025
R.F.A. No.915 of 2012 has been filed by the 1 st
defendant in O.S. No.633/2011 on the files of the II Additional
Sub Court, Ernakulam under Section 96 read with Order XLI
Rule 1 and 2 of the Code of Civil Procedure, 1908, challenging
the preliminary decree of partition passed in the above
case dated 14.06.2012. The respondents herein are the
plaintiff and other defendants.
2. R.F.A. No.82 of 2013 is also filed challenging the
preliminary decree of partition in O.S. No.633/2011, at the
instance of defendants 2, 3 and 5 to 8, arraying the plaintiff
and other defendants as the respondents.
3. Heard the learned counsel for the appellants and
the learned counsel appearing for the respondents, in detail.
Perused the verdict under challenge and the records of the
trial court.
4. Parties in these appeals shall be referred as
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R.F.A. Nos. 915 of 2012 & 82 of 2013
"plaintiff" and "defendants" with reference to their status
before the trial court.
5. Short facts:- The plaintiff instituted a suit seeking
partition of the plaint schedule properties and to allot 1/9
share to her, contending that the plaint schedule properties
were originally owned by one Sreedharan, who is the father
of the plaintiff and defendants and he died intestate.
6. The defendants resisted the suit mainly relying
on Will Deed No.26/1988 of SRO, Ernakulam dated
26.03.1988 asserting that, as per the Will, late Sreedharan
transferred his right to the defendants in exclusion of the
plaintiff and they perfected title in the respective shares in
terms of the Will. Therefore, the plaint schedule properties
are not partible.
7. The trial court ventured the matter, after raising
necessary issues. Exts.A1 and A2 marked on the side of the
plaintiff. DWs 1 and 2 examined and Exts.B1 to B12 marked
on the side of the defendants. Ext.B2 is the Will.
8. On anxious consideration of the evidence
tendered, the learned Sub Judge found that the defendants
failed to prove the due execution and attestation of Ext.B2
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R.F.A. Nos. 915 of 2012 & 82 of 2013
Will and therefore, the plaint schedule properties are
partible. Accordingly, preliminary decree of partition was
passed by allotting 1/9 share to the plaintiff and defendants
1 to 8.
9. While assailing the judgment of the trial court,
the main challenge raised by the defendants is regarding
the finding of the trial court that defendants miserably
failed to prove the execution and attestation of Ext.B2. It is
zealously argued that, there are two attesting witnesses in
Ext.B2, out of which, as per the proof affidavit filed by DW1,
he asserted that Sri.Xavier was no more. Accordingly, the
remaining attesting witness Sri.Sadanandan got examined.
After reading the evidence given by DW2, regarding the
manner in which he had signed in the Will, it is pointed out
by the learned counsel for the defendants that, DW2 given
evidence that he signed in the Will in the presence of the
testator and he also witnessed the testator signing the
same. Further, DW2 also given evidence that, DW2 and
others signed in the Will on the same day. Relying on his
evidence, it is pointed out that, when the evidence of DW2
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R.F.A. Nos. 915 of 2012 & 82 of 2013
is taken together, the essentials necessary to prove a Will,
within the ambit of Section 63(c) of the Indian Succession
Act read with Section 68 of the Evidence Act are complied
and therefore, the trial court failed in holding that Ext.B2
was not properly proved.
10. The learned counsel for the defendants placed
latest decision of the Apex Court reported in [2023 INSC
847] Meena Pradhan and Others v. Kamla Pradhan
and Another, where the Apex Court, after referring the
earlier decisions, in paragraph Nos.10 and 11, summarized
the essentials to prove a Will as under:
10. Relying on H. Venkatachala Iyengar v.
B.N. Thimmajamma, 1959 Supp (1) SCR 426 (3-
Judge Bench), Bhagwan Kaur v. Kartar Kaur,
(1994) 5 SCC 135 (3-Judge Bench), Janki Narayan
Bhoir v. Narayan Namdeo Kadam, (2003) 2 SCC
91(2-Judge Bench) Yumnam Ongbi Tampha Ibema
Devi v. Yumnam Joykumar Singh, (2009) 4 SCC
780 (3-Judge Bench) and Shivakumar v.
Sharanabasappa, (2021) 11 SCC 277 (3-Judge
Bench), we can deduce/infer the following principles
required for proving the validity and execution of the
Will:
i. The court has to consider two aspects: firstly, that
the Will is executed by the testator, and secondly,
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R.F.A. Nos. 915 of 2012 & 82 of 2013
that it was the last Will executed by him:
ii. It is not required to be proved with mathematical
accuracy, but the test of satisfaction of the
prudent mind has to be applied.
iii. A Will is required to fulfil all the formalities
required under Section 63 of the Succession Act,
that is to say:
(a) The testator shall sign or affix his mark to the
Will or it shall be signed by some other person in
his presence and by his direction and the said
signature or affixation shall show that it was
intended to give effect to the writing as a Will;
(b) It is mandatory to get it attested by two or
more witnesses, though no particular form of
attestation is necessary:
(c) Each of the attesting witnesses must have
seen the testator sign or affix his mark to the Will
or has seen some other person sign the Will, in
the presence and by the direction of the testator,
or has received from the testator a personal
acknowledgment of such signatures;
(d) Each of the attesting witnesses shall sign the
Will in the presence of the testator, however, the
presence of all witnesses at the same time is not
required;
iv. For the purpose of proving the execution of the
Will, at least one of the attesting witnesses, who
is alive, subject to the process of court, and
capable of giving evidence, shall be examined;
v. The attesting witness should speak not only about
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R.F.A. Nos. 915 of 2012 & 82 of 2013
the testator's signatures but also that each of the
witnesses had signed the will in the presence of
the testator;
vi. If one attesting witness can prove the execution
of the Will, the examination of other attesting
witnesses can be dispensed with;
vii. Where one attesting witness examined to prove
the Will fails to prove its due execution, then the
other available attesting witness has to be called
to supplement his evidence;
viii. Whenever there exists any suspicion as to the
execution of the Will, it is the responsibility of the
propounder to remove all legitimate suspicions
before it can be accepted as the testator's last
Will. In such cases, the initial onus on the
propounder becomes heavier.
ix. The test of judicial conscience has been evolved
for dealing with those cases where the execution
of the Will is surrounded by suspicious
circumstances. It requires to consider factors such
as awareness of the testator as to the content as
well as the consequences, nature and effect of
the dispositions in the Will; sound, certain and
disposing state of mind and memory of the
testator at the time of execution: testator
executed the Will while acting on his own free
Will;
x. One who alleges fraud, fabrication, undue
influence et cetera has to prove the same.
However, even in the absence of such allegations,
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R.F.A. Nos. 915 of 2012 & 82 of 2013
if there are circumstances giving rise to doubt,
then it becomes the duty of the propounder to
dispel such suspicious circumstances by giving a
cogent and convincing explanation.
xi. Suspicious circumstances must be 'real, germane
and valid' and not merely 'the fantasy of the
doubting mind. Whether a particular feature
would qualify as 'suspicious would depend on the
facts and circumstances of each case. Any
circumstance raising suspicion legitimate in
nature would qualify as a suspicious circumstance
for example, a shaky signature, a feeble mind, an
unfair and unjust disposition of property, the
propounder himself taking a leading part in the
making of the Will under which he receives a
substantial benefit, etc.
11. In short, apart from statutory compliance,
broadly it has to be proved that (a) the testator
signed the Will out of his own free Will, (b) at the time
of execution he had a sound state of mind, (c) he was
aware of the nature and effect thereof and (d) the Will
was not executed under any suspicious
circumstances.
11. It is pointed out by the learned counsel for the
defendants that, since the law only mandates that the
attesting witness should speak only about the testator's
signature and also that each of the witnesses had singed the
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R.F.A. Nos. 915 of 2012 & 82 of 2013
Will in the presence of the testator, Ext.B2 is proved by the
evidence of DW2.
12. The learned counsel for the plaintiff placed a
decision of this Court reported in Raveendranath N. v.
Sarala N. [2024 KHC OnLine 250 : 2024 KHC 250], where
also this Court considered the essentials to prove a Will and
held in paragraph No.11 as under:
11. It is equally well settled that the burden to
prove execution of Will and to show that it came out
of free will of the testator is only on the propounder.
A Will obtained by fraud, coercion or importunity is
void under Section 61 of the Act. The testator,
therefore, should have had necessary testamentary
capacity to execute the Will and propounders
claiming rights under the Will would have to
establish that the testator was in sound disposing
state of mind at the relevant period of time. The
testator could be presumed to be of sound disposing
state of mind when he was in a position to
understand the nature and effect of the disposition
he made and also when he acted on his own free
will. If there are suspicious circumstances affecting
the genuineness of Will, the burden is still on the
propounder to remove them and explain the
circumstances. Decisions reported in [1959 KHC
498 : AIR 1959 SC 443 : 1959 Supp (1) SCR 426 :
1959 Mys LJ 424], H.Venkatachala Iyengar v.
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R.F.A. Nos. 915 of 2012 & 82 of 2013
B.N.Thimmajamma & Ors.; [1964 KHC 465 : AIR
1964 SC 529], Shashi Kumar Banerjee & Ors. v.
Subodh Kumar Banerjee since deceased and
after him his legal representatives & Ors.;
[2013 KHC 4372 : 2013 (2) KLJ 797 : 2013 (2) KLT SN
136 : AIR 2013 SC 2088 : 2013 (7) SCC 490 : 2013
(3) SCC (Civ) 576 : 2013 (4) KCCR 2945 : 2013 (4)
ALD 104 : 2013 (127) AIC 155 : 2013 (3) CTC 650 :
2013 (99) ALR 487], M.B.Ramesh (D) By L.R.S v.
K.M.Veeraje Urs (D) by LRS. & Ors. and [1995
KHC 399 : 1995 (2) KLT 862 : 1995 (2) KLJ 577 : ILR
1996 (1) Ker. 566], Natarajan v. Sree Narayana
D.S. Trust, illustrated the said legal mandates.
12. He has also placed another decision of this Court
reported in Rajagopal v. Venugopal [2024 KHC OnLine
423 : 2024 KHC 423 : 2024 KER 35095], in support of his
contentions.
13. The learned counsel for the plaintiff argued that
the evidence given by DW2 in no way categorically suggests
the signing of the Will by the other attesting witness
Sri.Xavier, in any manner. That apart, it is argued that, if at
all the evidence of DW2 is taken as one that would suggest
signing of the Will by the other witness also, the evidence of
DW2 could not win confidence of the trial court, since his
2025:KER:672
R.F.A. Nos. 915 of 2012 & 82 of 2013
versions are contrary which would made his evidence
untrustworthy of credit. It is pointed out that, DW2 is not
aware when he signed in Ext.B2. But the date of Ext.B2 is
26.03.1988. The evidence of DW2 is that he singed in Ext.B2
in the presence of the testator, Sub Registrar and Sri.Xavier.
At the same time, during cross-examination of DW2, he
admitted that he did not visit Sri.Sreedharan after
26.03.1988, till the death of Sri.Sreedharan. Therefore, if
DW2 put the signature in the Will on the date of the Will i.e.
on 26.03.1988, the presence of the Sub Registrar is an
improbability, as the Will got registered by the Sub Registrar
only on 27.03.1988. If so, the presence of DW2 as stated by
him and the attestation he had done itself is in doubt.
Therefore, the evidence of DW2 by itself is insufficient to
prove the mandate of Section 63(c) of the Indian Succession
Act read with Section 68 of the Evidence Act.
14. In view of the rival arguments, the questions arise
for consideration are:
1. Whether the trial court went wrong in
holding that defendants herein failed to prove
Ext.B2 Will as mandated under Section 63(c) of the
Indian Succession Act read with Section 68 of the
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R.F.A. Nos. 915 of 2012 & 82 of 2013
Evidence Act?
2. Whether the verdict impugned would
require interference at the hands of this Court?
3. Reliefs and costs.
15. In this matter, the plaintiff and defendants are
siblings and they are admittedly the children of late
Sreedharan. There is no dispute that the plaint schedule
properties were originally belonged to late Sreedharan. If,
Sri.Sreedharan died intestate, the properties are partible
among the plaintiff and defendants. But, the plea of partition
at the instance of the plaintiff would necessarily fail, if the
property is found to be bequeathed in view of Ext.B2 Will, on
proving the same.
16. As per the legal provisions extracted, no doubt the
Will has to be proved by examining at least one attesting
witness and the attesting witness has to depose that he had
singed in the Will in the presence of the testator and the
testator signed in his presence and also he had witnessed
putting signatures by the other attesting witness. The
evidence given by DW2 is relevant in this regard. The
relevant portions are as under:
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R.F.A. Nos. 915 of 2012 & 82 of 2013
ഇതിലെ 13-ആം പേജിൽ സദാനന്ദൻ ആയി ഒപ്പിട്ടിരിക്കുന്നത്
ഞാനാണ്. ഇതിലെ ഒന്നാം പേജിന്റെ പുറകിൽ ഒപ്പിട്ടിരിക്കുന്നയാളും
ഞാനാണ് .
xxxx (omitted)
Ext.B2 കാലത്ത് ഇതിലുള്ള കാര്യങ്ങൾ ഗ്രഹിക്കുന്നതിനുള്ള
കഴിവ് ശ്രീധരനുണ്ടായിരുന്നോ (Q) ഉണ്ടായിരുന്നു (A) ശ്രീധരൻ
ഒപ്പിടുന്നത് നിങ്ങൾ കണ്ടിരുന്നോ (Q) കണ്ടിരുന്നു (A) നിങ്ങൾ
ഒപ്പിടുന്നതോ (Q) ഞാൻ അദ്ദേഹത്തിന്റെ മുന്നിൽ വച്ചാണ് ഒപ്പിട്ടത്
(A).
xxxx (omitted)
എന്ത് purpose നു വേണ്ടിയാണ് ഒപ്പ് വച്ചത് (Q) വിൽപത്രം
തയ്യാറാക്കുന്ന purpose നാണ് ഒപ്പ് വച്ചത് (A). നിങ്ങൾ ചെന്ന
ശേഷമാണോ വിൽപത്രം എഴുതിയത് (Q) അല്ല. എഴുതി
കഴിഞ്ഞിട്ടുണ്ടായിരുന്നു. ഞങ്ങൾ ഒപ്പിടുകയായിരുന്നു. (A) വിൽപത്രം
എഴുതിയ തീയതിയിൽ തന്നെ നിങ്ങളും മറ്റുള്ളവരും ഒപ്പ് വച്ചോ (Q)
അതെ (A).
xxxx (omitted)
26.03.1988 തീയതിക്ക് ശേഷം പിന്നെ നിങ്ങൾ ടി വീട്ടിൽ
പോകുന്നത് മരണത്തിനാണ് (Q) ശെരിയാണ് (A).
xxxx (omitted)
17. Now the question is whether the said evidence is
sufficient to prove the statutory mandate to hold the due
execution of Ext.B2.
18. Another contention raised by the learned counsel
for the defendants is that, as per Ext.B3, the 2 nd defendant
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R.F.A. Nos. 915 of 2012 & 82 of 2013
instituted a suit as O.S. No.121/1990 before the Munsiff
Court, Ernakulam against the defendant, who is the plaintiff
herein, seeking the relief of prohibitory injunction, claiming
right over the plaint schedule property, on the strength of
Ext.B2 Will, when he apprehended trespass upon the same
by the plaintiff herein. In the said suit, though the defendant
entered appearance, she failed to file written statement.
Accordingly, an ex-parte decree of prohibitory injunction was
passed on 13.11.1990 and Ext.B3 is the copy of plaint and
Ext.B4 is the copy of the judgment. On perusal of Exts.B3
and B4, the said submission appears to be convincing.
19. According to the learned counsel for the
defendants, even though filing of O.S. NO.121/1990 was
known to the plaintiff herein, who entered appearance in the
suit, being aware of the ex-parte judgment of prohibitory
injunction, not stated anything about the said suit or the ex-
parte decree thereof in the plaint and thereby there is
suppression of materials facts.
20. Resisting this contention, it is argued by the
learned counsel for the plaintiff that, even though the said
fact was not incorporated in the plaint because of non
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R.F.A. Nos. 915 of 2012 & 82 of 2013
communication of the same by the plaintiff to the counsel
and the same will not take away the statutory right of
partition claimed by the plaintiff, being one among the co-
owners of the plaint schedule properties. Therefore, Ext.B3
and B4 have no adverse effect on the plaintiff.
21. In response to this argument, it is held that as per
Exts.B3 and B4 the suit was decreed finding possession of
the property scheduled therein by the 2 nd defendant and in
the said suit the validity of Ext.B2 is no way decided in
terms of the mandate of Section 63(c) of the Indian
Succession Act read with Section 68 of the Evidence Act.
Therefore, Exts.B3 and B4 would not give any aid to the
defendants.
22. Relying on another judgment of this Court in
Devassykutty and others v. Visalakshy Amma and
others [2010 KER 23730 : MANU/KE/1244/2010] (R.S.A.
No.1128/2003 (A) dated 29.06.2010) rendered by a learned
Single Judge, placed by the learned counsel for the 1 st
defendant, it is argued that in a similar case of this nature, this
Court found due execution of the Will and therefore the same
ratio to be applied to the facts of this case. In this decision,
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R.F.A. Nos. 915 of 2012 & 82 of 2013
after elaborately discussing the law on the point, in
paragraph Nos.21 to 23, this court observed as under:
Going by the principle laid down in the above
decisions, it is evident that, one of the attesting
witnesses called upon to give evidence in relation to
the execution and attestation of the Will, apart from
speaking about his part of attestation has to speak
about the attestation by the other attesting witness
also. If he fails to do so, then it was incumbent on
the part of the propounder to call upon the other
attesting witness to give evidence. In a case where
the attesting witness is not available, there are other
methods which can be resorted to. So also it is well
settled that the fate of a Will dos not depend upon
the whims and fancies of an attesting witness.
Whatever that be, unless the attesting witness
examined as already mentioned, proves the
attestation by the other witness also, it cannot be
said that the attestation has been duly proved. In the
light of the decisions referred to above, the decision
reported in Varghese's Case cannot be treated as
good law.
22. Therefore the principle that only one of the
attesting witnesses needs to be called upon to give
evidence regarding attestation and execution of the
Will is qualified by the fact that the said witness
should not only speak about the execution of the
document but also about the attestation by both the
witnesses. The attesting witness called upon to give
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R.F.A. Nos. 915 of 2012 & 82 of 2013
evidence must speak about his own attestation and
the attestation by the other witness also. If he does
not do so, the attestation of the deed could not be
said to be duly proved unless the other attesting
witness is also called upon to speak about the same.
23. It is true that in the case on hand there is
no specific statement by P.W.2 that he had seen the
other attesting witness sign the Will in the presence
of the testator, but he has stated that the other
witness had also signed in the document. That
statement by implication and inference shows the
attestation by the other witness also.
23. In Devassykutty's case (supra), PW2 the
attesting witness deposed that the other witness also singed
in the Will. Therefore, this Court held that the said
"statement by implication and inference shows the
attestation by the other witness also". In the instant case,
DW2 in his chief-examination not deposed anything
regarding putting of signature by the other attesting witness,
Sri.Xavier. It is true that, during cross-examination when a
leading question was put to the mouth of the witness by
suggesting an answer in the affirmative that, all persons
signed in the Will on the date when DW2 signed the same,
he answered in the affirmative. In fact, in the question itself,
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R.F.A. Nos. 915 of 2012 & 82 of 2013
the answer was very much directly put. Thus, the probative
value of this part of evidence is much less. Therefore, it
could not be held that the evidence of DW2 is in tune with
the mandate of Section 63(c) of the Indian Succession Act
read with Section 68 of the Evidence Act. Thus, the ratio in
Devassykutty's case (supra) also cannot be applied in this
case.
24. Imagine for a moment that, the evidence given by
DW2 is taken as sufficient to prove execution of Ext.B2 Will
[but the evidence as a whole do not suggests so] the
evidence of DW2 would make his evidence contrary and
unbelievable. That is to say, DW2 is not aware when he
singed the Will. But, during his cross-examination, DW2
given evidence that, after signing the Will on 26.03.1988, he
did not go to the house of Sri.Sreedharan, till his death. If so,
it has to be inferred that DW2 signed in Ext.B2 Will on
26.03.1988, the previous day of its registration. At the same
time, the evidence of DW2 is that, when he reached at the
house of Sri.Sreedharan to put his signature in Ext.B2,
Sri.Sreedharan, Sub Registrar and Sri.Xavier were present.
But, Ext.B2 seen registered on 27.03.1988. If so, DW2 could
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R.F.A. Nos. 915 of 2012 & 82 of 2013
see the presence of the Sub Registrar at the time of putting
his signature only on 27.03.1988. In such view of the matter,
otherwise also the evidence of DW2 is contrary.
25. Holding so, it is held that the finding of the trial
court that the defendants miserably failed to prove due
execution and attestation of Ext.B2 Will is only to be
confirmed. Therefore, the decree and judgment impugned do
not require any interference.
26. Accordingly, these appeals are liable to fail and
the same stand dismissed. Considering the nature of these
cases, there shall be no order of cost. Point Nos.1 to 3
answered thus.
All interlocutory applications pending in these
regular first appeals also stand dismissed.
Sd/-
A. BADHARUDEEN
SK
JUDGE
