IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 27TH SEPTEMBER 2010 / 5TH ASWINA 1932 RFA.No. 414 of 2003() -------------------- OS.332/1994 OF ADDL.SUB COURT, IRINJALAKUDA ................. APPELLANT / DEFENDANT : --------------------------------------- RAGHAVAN, S/O. CHAKKUNGAL KOCHAKKAN, PORATHISSERY VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DIST. BY ADV. SRI.RENJITH THAMPAN RESPONDENTS / PLAINTIFFS : ----------------------------------------- 1. KOUSALIYA, AGED 62 YEARS, W/O. ATHIKKAYI SANKARAN, ORAKAM VILLAGE AND D/O. KOCHAKKAN, PORATHISSERY VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DIST. 2. THANKA, W/O. KURUNJILIKKATTIL GOPALAN, KIZHUTHANI DESOM, KARALAM VILLAGE AND D/O. KOCHAKKAN, PORATHISSERY VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DIST. R1 & R2 BY ADV. SRI.K.DIVAKARAN THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 27/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn ...2/- RFA.No. 414 of 2003 -2- ORDER ON I.A. NO. 2391/2003 OF RFA NO. 414/2003 DISMISSED 27/09/2010 SD/- M.N. KRISHNAN, JUDGE //TRUE COPY// P.S. TO JUDGE M.N. KRISHNAN, J. = = = = = = = = = = = = = = R.F.A. NO. 414 OF 2003 = = = = = = = = = = = = = = = Dated this the 27th day of September, 2010. J U D G M E N T This appeal is preferred against the judgment and decree passed by the Addl. Subordinate Judge, Irinjalakuda in O.S.332/94. The suit is one for recovery of possession on the strength of title. The plaintiffs' case is as follows. Father of the plaintiffs and the defendant and others had executed a Will No. 20/76 of SRO Nellayi and as per the terms of the Will the plaint schedule property had devolved upon the plaintiffs. The defendant was set apart 69 cents of land under the Will which he had taken possession after the death of the father and had transferred. As he was not looking after the property there was a demand R.F.A. 414 OF 2003 -:2:- and ultimately a suit for recovery of possession has been filed. 2. The defendant on the other hand would contend that his father had entrusted the entire property to him in 1969 and even if there is any right for the plaintiffs it is barred by adverse possession and limitation. He would also contend that the father was not capable of executing the Will in 1976 and would further contend he never executed a Will intentionally as alleged in the plaint. Therefore the defendant had denied the execution of the Will. So far as it relates to the 69 cents of property he would submit that his sister Thanka namely the second plaintiff has played fraud on him and made him execute the document, therefore he prays for dismissal of the suit. R.F.A. 414 OF 2003 -:3:- 3. The point that arises for determination is whether the plaintiffs have succeeded in proving the title. 4. The proof of title as far as this case is concerned would depend upon the proof of the Will. The Will has to be proved in accordance with S.68 of the Indian Evidence Act as well as u/s 63 of the Indian Succession Act. U/s 68 of the Indian Evidence Act at least one of the attesting witnesses has to be examined so far as the Will is concerned irrespective of the fact whether execution of the Will is admitted or not. If the attesting witnesses are not alive the provisions there in the Evidence Act to prove the Will and the manner is provided therein. As far as S.63 of the Indian Succession Act is concerned an appropriate attestation of the Will can be said to be done R.F.A. 414 OF 2003 -:4:- only when the attesting witnesses speaks that the testator putting his signature in the Will in their presence and all of them had seen one other affixing their signature. But it is true that it is not necessary that both the attesting witnesses must be present at the same time. So this is the methodology that is accepted for the proper proof of a Will. Here, unfortunately,no attesting witnesses is examined and if they are not alive the methodology provided u/s 69 or 70 or 71 of the Evidence Act is not complied with. Only a Sub Registrar is examined to prove the Will and what he had done is by producing the filing copy of the Will. The trial Court on the basis of the decision in Ammu V. Krishnan (1964 KLT 676) holds that the Will is proved. Even relying on that decision there is no difficulty to find in this case the Will has not been R.F.A. 414 OF 2003 -:5:- properly proved. In that case the Sub Registrar who had registered the Will was examined and he had deposed he had seen the executant signing the Will. This Court held that since the Will is not a compulsorily registrable document the evidence tendered by the Sub Registrar can be accepted. But as far as this case is concerned the Sub Registrar who had registered the Will is not examined. The successor after so many years produces a copy of the Will and speaks about the existence of the document. Proof of existence of a document cannot prove attestation. Therefore factually the trial court was totally erroneous in accepting that evidence. 5. Then another decision which was referred to in the judgment is reported in Mathu v. Cherchi (1990 (1) KLT 416). It has to be stated it was a case dealing with the sale. R.F.A. 414 OF 2003 -:6:- A sale deed is a document when its execution is admitted attesting witnesses has not to be examined. S.68 very clearly mandates that this exemption applies only to documents other than Wills. So a Will being a document of a solemn nature attempted to be established in the absence of the testator it has to be proved in the manner provided under the Evidence Act. Therefore that decision also will not help the plaintiffs regarding proof of the Will. But after hearing the defendants and also the recitals in the document, execution of the document in favour of the one of the parties where mention is made about the Will, there is some truth in what the plaintiff says. Therefore, interest of justice requires an opportunity to be given to the plaintiff to establish their case by proving the Will exactly R.F.A. 414 OF 2003 -:7:- as contemplated under the provisions of the Indian Evidence Act as well as the Indian Succession Act. Therefore judgment decree of the trial court are set aside and the matter is remitted back to the trial Court for fresh trial after permitting all concerned to produce documentary as well as oral evidence in support of their respective contentions in order to prove the Will and thereafter the matter be decided in accordance with law. Parties are directed to appear before the trial court on 1.11.2010. Parties shall bear their respective costs in the appeal. M.N. KRISHNAN, JUDGE. ul/-