IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM FRIDAY, THE 6TH AUGUST 2010 / 15TH SRAVANA 1932 LA.App..No. 1374 of 2009 ----------------------------- LAR.12/1993 of PRINCIPAL SUB COURT,KOCHI .................... APPELLANT(S): PETITIONERS/CLAIMANTS- B ------------------------------------------------- P.T.LAWRENCE, S/O. LATE TOM LAWRENCE AGED 71 YEARS, RESIDING IN H.NO.1/572, VADATHAZHA PATTALAM, FORT KOCHI VILLAGE, KOCHI TALUK, CLAIMANT 'B' IN CHEQUE APPLICATION 49/06-07 IN E.P. 40/2004 IN L.A.R. 12/93 OF KOCHI SUB COURT. BY ADV. SRI.SHIVSHANKAR RAO RESPONDENT(S)/RESPONDENT & CLAIMANTS C, D, AND E: ----------------------------------------------------------------- 1. STATE OF KERALA REPRESENTED BY SPECIAL TAHSILDAR (LA) G.C.D.A. ERNAKULAM (JUDGEMENT DEBTOR IN E.P. 40/04 IN LAR 12/93) 2. TREESA DEVASSY AGED 67 YEARS W/O. DEVASY AND D/O. LATE TOM LAWRENCE, RESIDING IN H.NO.37/776, PULLOKARAN HOUSE ELAMKULAM VILLAGE KANAYANNOOR TALUK, ERNAKULAM DISTRICT ('C' CLAIMANT) 3. MALCOM LAWRENCE, S/O. LAWRENCE AGE 78 YERS, XV/167 YATHANKANATHU HOUSE, NAZRETH, KOCHI-2 NOW RESIDING AT 'L' VILLA 457 8TH MAIN 6TH CROSS ROAD VIVEKNAGR, BANGALORE-560047. ('D' CLAIMANT IN E.P. 40/04 IN LAR 12/93) LAA.1374/09 -2- 4. ELIZABETH LAWRENCE, AGE 67 YEARS W/O. LATE LAWRENCE, C/O. C.J.PAULOSE, THALIATHAR AND PLOT NO. 586, MALLISAPALAYAM EXTENSION NEW TIPPA SANDRA POST, BANGALORE-560075 ('E' CLAIMANT IN E.P. 40/04 LAR 12/93). ADV. SRI.THOMAS T.VARGHESE FOR R2 SRI.N.SASI FOR R2 SRI.JOSEPH FRANKLIN FOR R4 GOVT.PLEADER SMT.LATHA T. THANKAPPAN (SR.) THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 06/08/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE & C. K. ABDUL REHIM, JJ. ------------------------------------------------ L. A. A. No.1374 of 2009 ------------------------------------------------ Dated this the 6th day of August, 2010 JUDGMENT Pius C. Kuriakose, J Under challenge in this appeal is the common order passed by the learned Subordinate Judge, Kochi in two cheque applications C.A.42/06-07 and C.A.49/06-07 filed respectively by the second respondent and the appellant herein. The appellant herein laid claim for the full amount under deposit (which comes to Rs.56,089/- which is 1/3 of Rs.1,68,268/-) towards the account of late Tom Felicitas. The appellant claimed on the basis of Ext.A1 Will that he being the legatee of late Felicitas, is entitled L. A. A. No.1374 of 2009 -2- for the amount. Even though evidence was adduced to prove the due execution of the Will with perfect testamentary capacity and its due registration in accordance with the law relating to registration, the learned Subordinate Judge has found under the common order that the due execution and registration of Ext.A1 is not established by the appellant. One of the reasons highlighted by the learned Subordinate Judge is the non-examination of the Registrar. Though Mr.R.Sivasankar Rao, the learned counsel for the appellant argued that the court below was not justified in insisting on examination of the Registrar as the very registration itself arouses a presumption in terms of Section 114 (e) of the Indian Evidence Act, we feel that in the present L. A. A. No.1374 of 2009 -3- case where Ext.A1 document it is shrouded with some suspicion, the evidence on the side of the appellant who is the propounder of the Will will not be complete unless the Registrar is also examined. Mr.Rao submitted that if opportunity is given there will not be difficulty for examining the Registrar. 2. In view of the above submission, we set aside the common order which is impugned in this appeal and remand the two cheque applications back to the learned Subordinate Judge. The learned Subordinate Judge will give opportunity to the appellant to adduce further evidence including the examination of the Registrar who facilitated the Registration of Ext.A1 will. The further enquiry will be completed and revised orders will be L. A. A. No.1374 of 2009 -4- passed by the learned Subordinate Judge at the earliest and at any rate within two months of parties entering appearance before the court below. The parties will enter appearance before the court below on 05/09/10. We make it clear that if parties apply for cheque for disbursement of the amounts which are indisputably due to them those cheque applications will be favourably considered. PIUS C. KURIAKOSE JUDGE C. K. ABDUL REHIM JUDGE kns/-