IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 18TH JUNE 2010 / 28TH JYAISTHA 1932 SA.No. 239 of 1996(C) -------------------------------- AS.9/1992 of SUB COURT, PAYYANNUR OS.157/1990 of MUNSIFF COURT, PAYYANNUR .................... APPELLANT/RESPONDENT/PLAINTIFF: --------------------------------------------------------- *1. AIKOMATH LAKSHMI AMMA, D/O.MADHAVI AMMA, PANAPUZHA AMSOM KAITHPRAM DESOM, KANNUR DISTRICT.*(DIED) * ADDL. APPELLANTS 2 TO 8 IMPLEADED ADDL. A2: AIKKOMATH NARAYANI, D/O.AIKKOMATH LAKSHMI AMMA, AIKKOMATH, PANAPPUZHA AMSOM DESOM, KANNUR DISTRICT. ADDL. A3: A. KARTHIYAYINI, D/O.AIKKOMATH LAKSHMI AMMA, AIKKOMATH, PANAPPUZHA AMSOM DESOM, KANNUR DISTRICT. ADDL. A4: A. RAMACHANDRAN, S/O.AIKKOMATH LAKSHMI AMMA, AIKKOMATH, PANAPPUZHA AMSOM DESOM, KANNUR DISTRICT. ADDL. A5: A. LALITHA, D/O.AIKKOMATH LAKSHMI AMMA, AIKKOMATH, PANAPPUZHA AMSOM DESOM, KANNUR DISTRICT. ADDL. A6: RAMADEVI. A, D/O.AIKKOMATH LAKSHMI AMMA, AIKKOMATH, PANAPPUZHA AMSOM DESOM, KANNUR DISTRICT. ADDL. A7: SOUDAMINI. A., D/O.AIKKOMATH LAKSHMI AMMA, AIKKOMATH, PANAPPUZHA AMSOM DESOM, KANNUR DISTRICT. ADDL. A8: AIKKOTH VIJAYAN, S/O.AIKKOMATH LAKSHMI AMMA, AIKKOMATH, PANAPPUZHA AMSOM DESOM, KANNUR DISTRICT. BY ADV. SRI.M.SASINDRAN SA.No. 239 of 1996(C) RESPONDENTS/APPELLANT AND RESPONDENTS/DEFENDANTS: ------------------------------------------------------------------------------------------------- 1. AIKOMATH JANAKI AMMA, D/O.MADHAVI AMMA, RESIDING AT PANAPUZHA AMSOM, MATHAMANGALAM, KANNUR DIST. 2. THAMBAI, D/O.MADHAVI AMMA, PANAPUZHA AMSOM, KAITHAPRAM DESOM, MATHAMANGALAM, KANMNUR DIST. 3. PULLAMPILAVIL KUNHIKANNAN, S/O.KRISHNAN NAIR, KADANNAPPALLI AMSOM DESOM, MATHAMANGALAM, KANNUR DIST. 4. PULLAMPILAVIL DEVI AMMA, W/O.LATE NARAYANAN NAIR, PANAPUZHA AMSOM, MATHAMANGALAM, KANNUR DIST. 5. KRISHNAN, S/O.LATE NARAYANAN NAIR, PANAPUZHA AMSOM, MATHAMANGALAM, KANNUR DIST. 6. KAMALAKSHI, D/O.LATE NARAYANAN NAIR, PANAPUZHA, MATHAMANGALAM, KANNUR DIST. 7. BHASKARAN, S/O.LATE NARAYANAN NAIR, PANAPUZHA AMSOM, KAITHAPRAM DESOM, MATHAMANGALAM, KANNUR DIST. 8. MOHANAN, S/O.LATE NARAYANAN NAIR, PANAPUZHA AMSOM, KAITHAPRAM DESOM, MATHAMANGALAM, KANNUR DIST. *ADDL. R9 IMPLEADED ADDL. R9: RAMESAN. A., PAINADI, PANAPPUZHA, MATHAMANGALAM, KANNUR DISTRICT. *LRS OF DECEASED APPELLANT ARE IMPLEADED AS ADDL. APPELLANTS 2 TO 8 AND ADDL. R9 AS PER ORDER DATED 06/08/2009 IN I.A.1215/2009. R1 TO R3 BY ADV SRI.CIBI THOMAS. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 18/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SA.No. 239 of 1996(C) J U D G M E N T No representation. Appeal is dismissed for default. There will be no order as to costs. 18/06/2010. SD/- P.BHAVADASAN, JUDGE ORDER ON C.M.P. NO.602/1996 IN S.A. NO.239/1996 CLOSED 18/06/2010. SD/- P.BHAVADASAN, JUDGE //TRUE COPY// P.S. TO JUDGE rs. P.BHAVADASAN, J. ------------------------------------- SA Nos.239 & 240 of 1996 ------------------------------------- Dated this the 4th day of January 2011 Judgment An unfortunate situation has arisen in these cases, whereby this court is compelled to remand the cases to the trial court for fresh disposal due to contributions both by the parties as well as by the court below. 2. It is not in dispute that there were two suits, which were independently tried. In both the suits, there were a few common parties. OS No.157/90 was a suit for partition, while OS No.86/90 was a suit for injunction. Both the suits were dismissed by the trial court. In appeal, the appellate court interfered with the judgment and decree of the trial court and decreed OS No.86/90 and dismissed OS No.157/90. The respective appeals are AS Nos.24/92 and 9/92 before the Sub Court, Payyannur. SA 239 & 240 OF 1996 2 3. The plaintiff in OS No.157/90, who is one of the defendants in OS No.86/90, is the appellant in these cases. 4. The suits involved two items of properties. Item No.1 in OS No.157/90 was initially acquired by Madhavi Amma and Krishnan Nair. Krishnan Nair sold his rights to Narayani, who is one of the daughters of Madhavi Amma. Madhavi Amma later relinquished her rights to Narayani Amma. Item No.2 in OS No.156/90 exclusively belonged to Madhavi Amma. On 10.01.1974, she executed a gift deed, whereby, she gave the property to the plaintiff in OS No.157/90, Narayani Amma, Janaki and Thambai, who are her daughters. It is not in dispute that Narayani Amma died intestate and a spinster. It is also not in dispute that her rights over the suit properties devolved on Madhavi Amma. 5. The plaintiff in OS No.157/90 laid the suit on the basis that Madhavi Amma died intestate while the plaintiffs in OS No.86/90 relied on a Will, said to have been SA 239 & 240 OF 1996 3 executed by Madhavi Amma. Ext.B3 in OS No.157/90 is the Will put forward by the contesting defendants in the said suit. They relied on the said Will to non-suit the plaintiffs. It was based on the same Will that OS No.86/90 was instituted against the plaintiff in OS No.157/90, who was one of the parties in OS No.86/90. 6. The plaintiff in OS No.157/90 had specifically disputed the genuineness of the Will. Since the Will was the crucial document in both the suits and common issues were involved, one would have expected the trial court to try both the suits jointly. But, for reasons best known to the trial court, it tried the cases independently. 7. The trial court found against the Will in both the suits and therefore, the partition suit was decreed and the injunction suit was dismissed. The plaintiffs in the injunction suit i.e., OS No.86/90, who were also the defendants in OS No.157/90 took up the matter in appeal. Surprisingly enough, the appeals were jointly heard and disposed of by a common judgment. The appellate court SA 239 & 240 OF 1996 4 chose to accept the Will and granted reliefs accordingly. 8. One may notice here that in OS No.157/90, where the contesting defendants put forward the Will, since they had not examined any of the attesting witnesses, the trial court was compelled to find that the Will had not been proved. It is trite that the burden to prove the Will is on the propounder of the Will and it is obligatory on his part to prove due execution of the Will. It is seen from the records that in OS No.157/90 summons was taken out to the attesting witness. However, his presence could not be procured. But, that is not a ground to hold that the execution and the attestation need not be proved. If the attesting witness is not available, there are other means of proving the Will. The defendants in OS No.157/90 have not resorted to any other means of proving the Will. It may at once be noticed that there was nothing to show that the attesting witness was not available at all. It is in the above circumstances that the trial court was compelled to hold SA 239 & 240 OF 1996 5 against the Will. 9. Even assuming the finding regarding the genuineness of the Will in AS No.24/92 which arose from OS No.86/90 is correct, it cannot operate as a judgment in rem since no property has been obtained and it can be treated only as a judgment in personam. It is an admitted case that some of the parties in the partition suit are not parties to the injunction suit. Therefore, the finding regarding the genuineness of the Will in OS No.86/90 could not have been adopted in OS No.157/90 unless they were jointly tried. It cannot be said that the finding of the trial court that the genuineness of the Will has not been proved in OS No.157/90 is erroneous in law since none of the attesting witnesses has been examined and there is no attempt from the side of the contesting defendants to resort to any other means of proving execution of the Will. The trial court was perfectly justified in holding against the Will. 10. It is seen from the appeal memorandum of the lower appellate court that the appellant before the lower SA 239 & 240 OF 1996 6 appellate court had specifically taken a ground that both the suits ought to have been tried jointly. The best course open to the lower appellate court was to remand the matter to the trial court with a direction to try the suits jointly and dispose of the suits by a common judgment. This is so because in both the cases, the resolution of the disputes turns around the genuineness of the Will executed by Madhavi Amma. As things now stand, there are conflicting findings regarding the Will. 11. At best, what could be said is that the finding regarding the genuineness of the Will in OS No.86/90 would act as binding only between the parties to the said suit. But, that can have no effect on the persons who are not parties to the suit and are parties to the partition suit i.e., OS No.157/90. 12. The lower appellate court was, therefore, not justified in adopting the finding in AS No.24/92, which arose from OS No.86/90 to dispose of AS No.9/92, which arose from OS No.157/90. As already noticed, there was SA 239 & 240 OF 1996 7 no ground to interfere with the finding regarding the Will in OS No.157/90. 13. In the above circumstances, the only course open now is to remand the matter to the trial court with a direction to try the suits and dispose of the same by a common judgment. Of course, it is only appropriate that the parties be given liberty to adduce further evidence if they so choose. In the result, these appeals are allowed. The impugned judgments and decrees are set aside and both the suits are remanded to the trial court to be tried and disposed of jointly afresh in accordance with law and in the light of what has been stated above. The parties will be at liberty to adduce further evidence, if they so choose. They shall appear before the trial court on 23.02.2011. The court may make every endeavour to dispose of the suits as expeditiously as possible, at any rate, within six months from the date of appearance of parties. There will be no order as to costs. SA 239 & 240 OF 1996 8 The office will send back the records to the trial court forthwith. P.Bhavadasan, Judge sta SA 239 & 240 OF 1996 9