IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN FRIDAY, THE 20TH MARCH 2009 / 29TH PHALGUNA 1930 RSA.No.36 of 2009 (D) --------------------------- AS.3/2005 of SUB COURT, KASARAGOD OS.239/2004 of PRL.MUNSIFF, KASARAGOD .................... APPELLANT/APPELLANT/PLAINTIFF ------------------------------------------- NARASIMHA PURUSHA, S/O. PARAMESWARA PURUSHA, RESIDING IN CHALITHADKA OF BADIADKA, NEERCHAL VILLAGE, KASARAGOD TALUK AND DISTRICT, POST KUNTIKANA - 671 551. BY ADV. SRI.K.SHRIHARI RAO SMT.N.SHOBHA RESPONDENT/RESPONDENT/DEFENDANT ------------------------------------------------- SMT. SUMATHI, W/O.KRISHNA PURUSHA, RESIDING IN CHALITHADKA BADIADKA, NEERCHAL VILLAGE, KASARAGOD TALUK AND DISTRICT, POST KUNTIKANA - 671 551. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 20/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ R. S. A. No.36 of 2009 ------------------------------------------------ Dated this the 20th day of March, 2009 JUDGMENT The plaintiff who has sustained defeat concurrently in both the courts below is the appellant in this RSA. He filed O.S.239/04 on the file of the Munsiff's Court, Kasaragod against the respondent/defendant who is his own sister for declaration of title and possession over 'A' schedule building inter alia on the allegation that 'A' schedule building is situated in R.S. No.541/1A of Neerchal Village measuring 4 acres which originally belonged to one Parameshwara Purusha/father of the plaintiff and the defendant, he having got it assigned as per assignment in his favour vide proceedings before the Tahsildar, Kasaragod; that the said Parameshwara Purusha executed Ext.A1 will in respect of entire 4 acres of land on 30/05/95; R. S. A. No.36 of 2009 -2- that as per the will the 'A' schedule building is allotted to the plaintiff and 'C' schedule was allotted to the defendant; that 'A' schedule building is situated in the property allotted to the plaintiff; that Parameshwara Purusha died on 06/06/95 and the will has come into effect and thus, plaintiff is the absolute owner of 2 acres of land in R.S. No.541/1A including the 'A' schedule building therein; that the defendant has accepted the will and she has been in possession and enjoyment of the 'C' schedule properties paying tax and later vide proceedings in L.A.30/96 the property in R.S. No.803/2AG was assigned to the defendant; that she intended to construct a house in her property and requested for permission to continue occupation in 'A' schedule building and the plaintiff permitted the defendant to occupy R. S. A. No.36 of 2009 -3- 'A' schedule building as a licensee; that the defendant completed the construction of the building and the plaintiff requested her to vacate the 'A' schedule building as he is in bona fide need of the said building, but the defendant refused to vacate; that thereupon Ext.A2 registered notice was issued to the defendant on 18/03/03 terminating the licence with effect from 31/03/03, but the defendant who received the notice on 24/03/03 sent a reply raising false and frivolous contentions though however, she has no right to continue occupation of 'A' schedule building; that the plaintiff is entitled to recover possession of 'A' schedule building on the strength of his title and hence, the suit. 2. Defendant resisted the suit filing a written statement contending inter alia that Parameshwara Purusha/the father of the R. S. A. No.36 of 2009 -4- plaintiff and the defendant died intestate and is survived by six children who are the legal heirs and all the six children are having 1/6th share in the property left behind by the deceased father and all the six children are in joint possession and enjoyment of the scheduled property as co-owners; that Ext.A1 will had not been executed by the father and it does not contain the signature or thumb impression of the testator; that the father had not signed or executed any will at any point of time; that Ext.A1 is a concocted document; that the plaintiff has no right, title or interest over the 'A' schedule building which is constructed by the defendant and belongs exclusively to her; that the bequeath made mention of is incorrect; that the defendant is not in possession of 'C' schedule property paying basic tax as alleged; R. S. A. No.36 of 2009 -5- that Ext.A1 will as also the recitals therein are false and is not valid and is not binding on the defendant or other legal heirs of Parameshwara Purusha. 3. It is further contended by her that the plaintiff was appropriating the entire income from the property of 4 acres and he has issued Ext.A2 notice after creating false documents when the defendant demanded her share in the income from the properties; that the allegation that the defendant requested permission to occupy 'A' schedule building etc. are false; that appropriate reply had been issued to Ext.A2 notice; that the defendant is the absolute owner of the building bearing door No.4/305 of Badiadka Panchayath though by a mistake in the reply notice it is stated that she is a co-owner; that the plaintiff has no cause of action and R. S. A. No.36 of 2009 -6- is not entitled to any relief prayed for and the suit has to be dismissed. 4. On the above pleadings, the trial court raised necessary issues for trial and considering the evidence adduced at trial which consisted of oral evidence of PWs.1 and 2 and DW1 and documentary evidence Exts.A1 to A4(e) and Exts.B1 to B3 dismissed the suit with costs. Appeal filed by the plaintiff before the Sub Court, Kasaragod as A.S.3/05 has been dismissed with costs concurring with the verdict of the trial court and hence, this R.S.A by the plaintiff against the concurrent verdicts. 5. It is vehemently contended before me by the learned counsel for the appellant that the reasons for which the courts below has concurrently given verdict against the plaintiff are that witnesses to Ext.A1 will R. S. A. No.36 of 2009 -7- are not examined; that the distribution of assets as per Ext.A1 is inequitable; that the will is unregistered; that the age of the testator is 76 and that there are strong suspicious circumstances surrounding execution of the said will. 6. According to the learned counsel, the scribe to Ext.A1 was examined who has actually witnessed execution of the will and his evidence should have been accepted as evidence of an attestor and in proof of Ext.A1 will; that non-registration or inequitable distribution of assets by the testator is not a ground to disbelieve the genuineness of the will; that the age of the testator should not have been given undue importance especially when, there is no contention for the respondent/defendant that he was not having power of testamentary disposition and that R. S. A. No.36 of 2009 -8- existence of suspicious circumstances alleged was being wrongly found by the courts below. 7. It is true that the age of the testator, the non-registration of the will or inequitable distribution of assets by itself will not be grounds to cast any suspicion on the genuineness of the will. But for proper proof of the will attestors to the will should have been examined. The scribe has signed in the will, it is submitted not as an attestor, but as a scribe only and his testimony especially when the attestors to the will are stated to be alive could not have been accepted as a substitute for evidence from the attestors, as regards execution of the will. 8. According to the learned counsel, no sufficient opportunity was afforded to examine the attestors. There is no case for the appellant that summons was taken out to the R. S. A. No.36 of 2009 -9- attestors as witnesses and still they have not appeared to tender evidence and that the trial court did not afford opportunity to take coercive steps. 9. It is worthy to remember that all pretrial steps will have to be taken by the parties before the suit is included for trial in the list and parties and witnesses are to be examined on the day on which the suit stands posted for trial in the list and if their examination is not completed on that day, the trial of the case has to be continued the next day or on the succeeding days till evidence is recorded in full. The appellant has no case that any witness schedule was filed at least on the day on which the suit stood posted for trial in the list or that any request was made to issue summons or coercive steps as against the attestors if at all they R. S. A. No.36 of 2009 -10- had been cited as witnesses in the witness schedule if any, filed. 10. Counsel submits that a commission application had been filed as I.A.2059/04 on 02/11/04 when the suit stood posted for trial in the list and that was dismissed by the court below. There was no need to issue a commission on the submissions made before me by the learned counsel and what was the relevancy of a commission being issued is not stated before me. Considering the contentions of the parties, there was absolutely no need to issue any commission. 11. He further submits that when the evidence was closed and the case stood posted for hearing before the trial court on 05/11/04, a petition was filed to re-open the case for evidence, but he is unable to give the I.A. number of that application and he is R. S. A. No.36 of 2009 -11- not aware as to what is the order passed on such an application if any, filed. I cannot take the submissions as correct at the face value because the appeal memorandum filed in the lower appellate court does not show that any ground was taken advancing grievance that witnesses cited were not allowed to be examined, though a ground is taken that no time was granted for the examination of the attesting witnesses. Probably it might have been for that purpose that petition was filed as submitted, on 05/11/04 when the case stood posted for final hearing after closing of evidence. It is not when the case is posted for hearing after closing of evidence that the plaintiff has to move for re-opening the case for examination of attesting witnesses especially when the basis of the claim in the suit is Ext.A1 will and the genuineness of the R. S. A. No.36 of 2009 -12- said will could not have been established without examining the attestors in view of the contentions raised in the written statement by the respondent/defendant. 12. It is also worthy to note that even before the first appellate court what the appellant wanted was relief of allowing the appeal with costs throughout in reversal of the decree and judgment of the trial court and no request was made for a remand of the case for the reason that an opportunity should have been given for examining attesting witnesses though it is submitted by the counsel for the appellant that the attesting witnesses are still alive even as on today. Thus, there was absolute lack of proof regarding execution of Ext.A1 will by the father of plaintiff and defendant and the courts below could not, but dismiss the suit for recovery of possession of R. S. A. No.36 of 2009 -13- 'A' schedule building from the respondent/ defendant who is sister of the appellant who is admittedly in occupation of the 'A' schedule building in the absence of proper proof of Ext.A1 will. 13. Incidentally, I may also observe that it is seen from the written statement that other than the plaintiff and the defendant, there are four other children also for the testator and when the genuineness of a will is to be established so as to enable a succession different from the intestacy it was only proper that the other children also were made parties. However, even in the absence of other parties, the appellant/plaintiff having miserably failed to prove the genuineness of the will as one duly executed by the alleged testator, as rightly found by the courts below concurrently, there is absolutely no merit in R. S. A. No.36 of 2009 -14- this RSA and there is no question of law and much less any substantial question of law as is attempted to be formulated in the appeal memorandum. 14. In the result, I dismiss this RSA. K.P.BALACHANDRAN, JUDGE kns/-