IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 8TH JANUARY 2010 / 18TH POUSHA 1931 RSA.No. 1256 of 2009() ---------------------- AS.33/2006 of DISTRICT COURT, PATHANAMTHITTA OS.401/2002 of MUSNIFF COURT,ADOOR .................... APPELLANT/IST RESPONENT/PLAINTIFF ----------------------------------------------------- SOMARAJAN, S/O.LATE KRISHNAN, RTD. GOVT. EMPLOYEE, ANI BHAVAN, KADAMPANADU THEKKUMURI AND VILLAGE, ADOOR TALUK. BY ADV. SRI.C.A.CHACKO SRI.C.M.CHARISMA SRI.N.A.SHAFEEK RESPONDENT(S): APPELLANT/DEFENDANTS 2 TO 5/DEFENDANTS: ----------------------------------- 1. K.DHARMARAJAN, S/O.LATE KRISHNAN, S.D.BHAVAN, KADAMPANADU THEKKE MURI, KADAMPANADU VILLAGE, ADOOR TALUK, PATHANAMTHITTA. 2. SULOCHANA, D/O.KARTHYANI, VILAYIL VEEDU, ARINALLOOR MURI, THEVALAKKARA VILLAGE, KUNNATHUR TALUK. 3. BHANU, S/O.LATE KESAVAN, POIKAYIL VEEDU, KADAMPANADU THEKKU MURI, KADAMPANADU VILLAGE, ADOOR TALUK. 4. C.V.THOMAS, S/O.VARGHESE, CHAPRATHU VEEDU, KADAMPANADU THEKKU P.O. AND MURI, KADAMPANADU VILLAGE. 5. ANNAMMA THOMAS, W/O.C.V.THOMAS, CHAPRATHU VEEDU, KADAMPANADU THEKKU P.O. AND MURI, KADAMPANADU VILLAGE. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 08/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- R.S.A.No.1256 of 2009 -------------------------------------- Dated this the 8th day of January, 2010. JUDGMENT The Second Appeal arises from judgment and decree of learned District Judge, Pathanamthitta in A.S.No.33 of 2006 reversing judgment and decree of learned Munsiff, Adoor in O.S.No.401 of 2002. Parties are referred to as plaintiff and respondents as in the trial court for convenience. 2. Suit is in respect of a total of 50 cents. Plaintiff prayed for setting side Ext.B1, settlement deed, partition and separate possession of the share claimed by him in the suit property. Plaintiff and defendant No.3 are the children of Krishnan and Karthiayani. Karthiayani had earlier married Kesavan, the elder brother of Krishnan and in that wedlock defendant No.1 and 2 are born. It is not disputed that 40 cents out the 50 cents referred to in the plaint schedule was acquired by Kesavan and Karthiayani as per Ext.A1. The remaining 10 cents was acquired by Krishnan and Karthiayani as per Ext.A2. After the death of Kesavan, Karthiayani married Krishnan, the younger brother of Kesavan. Krishnan and Karthiayani executed Ext.B1 dated 24.5.1986 settling the 50 cents in favour of defendant Nos.1 to 3, defendant No.1 getting five (5) cents, defendant No. getting 15 cents and defendant No.3 getting the remaining 30 cents. That settlement deed according to the plaintiff, is fraudulently created and hence the present suit. Defendants resisted the suit contending that plaintiff RSA No.1256/2009 2 has no right over suit property and that Ext.B1 is valid. Learned Munsiff came to the conclusion that Ext.B1 is not properly attested as required under Section 122 of the Transfer of Property Act (for short, “the Act”), set aside Ext.B1 and granted preliminary decree for partition as prayed for. Defendant No.3 challenged judgment and decree of the learned Munsiff before learned District Judge. Learned District Judge found that Ext.B1 is properly attested, allegation of fraud in the execution of Ext.B1 is not established and that plaintiff is not entitled to any share in the property and accordingly the suit was dismissed. That judgment and decree are under challenge in this Second Appeal. The question raised by way of substantial question of law are whether the first appellate court was justified in discarding the mandate of Section 122 of the Act by applying the proviso to Section 68 of the Indian Evidence Act and whether finding of the first appellate court that Ext.B1 is valid is legally correct? It is contended by learned counsel that first appellate court has not properly appreciated Ext.B1, settlement deed and the mandate of Section 122 of the Act while concluding that Ext.B1 is a valid settlement deed. 3. I have gone through a copy of Ext.B1 given to me by learned counsel for perusal. The document says that it is attested by the document writer and its scribe as witnesses as well. Under Section 122 of the Act the gift is required to be attested by two or more witnesses. There is no rule that a scribe or document writer cannot be an attesting witness. A scribe or document writer can also be attesting witnesses to the document. Question whether the scribe or document writer signed as attesting witnesses also or merely in their capacity RSA No.1256/2009 3 as scribe or document writer is one of fact. Ext.B1 specifically states that the scribe and document writer have signed the document in that capacity as well as witnesses (to the execution). Going by Ext.B1 it is clear that the said persons have signed the document as witnesses as well. No attempt was made by the plaintiff to show that the said statement in Ext.B1 is not correct. Concededly he has not examined the persons who are shown from Ext.B1 to have attested the document as witnesses. Learned Munsiff without considering the relevant aspects held that Ext.B1 is not properly attested. First appellate court is legally and factually correct in holding in favour of due attestation of Ext.B1. 4. So far as the proof of Ext.B1 under Section 68 of the Evidence Act is concerned the proviso says that when execution of the document other than Will is not specifically denied it is not necessary to call any attesting witness in proof of the execution of document. Execution of Ext.B1 is not disputed, the challenge being only to its validity. There is no case that Krishnan and Karthiayani had not executed Ext.B1. Hence it was not necessary to examine the attesting witnesses. 5. That Ext.B1 has taken effect is also in evidence as it is revealed from the evidence of DW3 that he purchased a portion of the property dealt with under Ext.B1. 6. So far as allegation of fraud is concerned, it is not stated in what way fraud was committed. Learned District Judge observed that though plaint was amended to incorporate a challenge to Ext.B1 there is no amendment in RSA No.1256/2009 4 the body of the plaint. Amendment was only in the relief portion. That is not a substitute for averment in the plaint. 7. 40 cents out of the 50 cents dealt with as per Ext.B1 belonged to Kesavan and Karthiayani. Plaintiff being the son of Krishnan and Karthiayani could not claim any right in the share of Kesavan in the said 40 cents. Regarding the remaining half share of Karthiyayani in the said 40 cents he could make a claim only if Karthiayani died interstate. The entire 40 cents is dealt with under Ext.B1. 10 cents belonging to Krishnan and Karthiayani is also dealt with by them as per Ext.B1. Hence plaintiff could not claim any right in the suit property so far as Ext.B1 stood. First appellate court on the evidence upheld Ext.B1. So much so plaintiff is not having any right in the suit property to entitle him claim partition and separate possession. No substantial question of law is involved for consideration in this Second Appeal. Resultantly, the Second Appeal is dismissed in limine. I.A.No.2884 of 2009 will stand dismissed. THOMAS P.JOSEPH, Judge. cks