IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 4TH MARCH 2011 / 13TH PHALGUNA 1932 RSA.No. 1372 of 2010() ---------------------- AS.34/2001 of SUB COURT,KOTTARAKKARA OS.645/1996 of MUNSIFF COURT, KOTTARAKKARA .................... APPELLANTS/RESPONDENTS 1,2 & 4 TO 7/ DEFENDANTS 4-7 ------------------------------ 1. RAMACHANDRAN ACHARY, S/O.GOPALAN ACHARY, AGED 61, RESIDING AT PARAVILA PUTHEN VEEDU, MUTTARA MURI, ODANAVATTOM VILLAGE, KOTTARAKARA TALUK. 2. SIVARAMAN ACHARY, S/O.GOPALAN ACHARY, AGED 59, RESIDING AT PARAVILA PUTHEN VEEDU, MUTTARA MURI, ODANAVATTOM VILLAGE, KOTTARAKARA TALUK. 3. KRISHNANKUTTY ACHARY, S/O.GOPALAN ACHARY, AGED 55, RESIDING AT PARAVILA PUTHEN VEEDU, MUTTARA MURI, ODANAVATTOM VILLAGE, KOTTARAKARA TALUK. 4. JANARDHANAN ACHARY, S/O.GOPALAN ACHARY, AGED 61, RESIDING AT PARAVILA PUTHEN VEEDU, MUTTARA MURI, ODANAVATTOM VILLAGE, KOTTARAKARA TALUK. 5. LEELA, D/O.DEVAKI, AGED 53, RESIDING AT PARAVILA PUTHEN VEEDU, MUTTARA MURI, ODANAVATTOM VILLAGE, KOTTARAKARA TALUK. 6. CHANDRIKA, D/O.DEVAKI, AGED 47, RESIDING AT PARAVILA PUTHEN VEEDU, MUTTARA MURI, ODANAVATTOM VILLAGE, KOTTARAKARA TALUK. BY ADV. SRI.SHABU SREEDHARAN SRI.C.K.PRASAD SRI.K.NANDAKUMAR RESPONDENT(S)/APPELLANTS & 3RD RESPONDENT/ADDL.PLAINTIFFS 2-4 & 3RD DEFENDANT: --------------- 1. RADHAMONY, W/O.MADHAVAN ACHARY, AGED 46, PARVATHY VILASOM, KUNNATHU VEEDU, AMBALAPPURAM MURI, KOTTARAKKARA VILLAGE. 2. MUKESH (MINOR), S/O.MADHAVAN ACHARY, AGED 22, PARVATHY VILASOM, KUNNATHU VEEDU, AMBALAPPURAM MURI, KOTTARAKKARA VILLAGE. 3. MAHESH (MINOR), S/O.MADHAVAN ACHARY, AGED 19, PARVATHY VILASOM, KUNNATHU VEEDU, AMBALAPPURAM MURI, KOTTARAKKARA VILLAGE. 4. SASIDHARAN ACHARY, S/O.GOPALAN ACHARY, AGED 57, RESIDING AT PARAVILA PUTHEN VEEDU, MUTTARA MURI, ODANAVATTOM VILLAGE, KOTTARAKKARA TALUK. ADV. SRI.B.MOHANLAL FOR R1-3 SRI.T.PRASAD FOR R1-3 SRI.SAIJU S. FOR R1-3 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 04/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- R.S.A.NO.1372 OF 2010 --------------------------------------------- Dated 4th March, 2011 JUDGMENT Defendants 1,2 and 4 to 7 in O.S.645/1996 on the file of Munsiff's Court, Kottarakara are the appellants. Original plaintiff died and respondents 1 to 3 are his legal heirs, the additional plaintiffs and fourth respondent is the third defendant. Suit was filed for partition and separation of 1/8 share of the plaintiffs contending that plaint schedule property originally belonged to the mother Parvathy Devaki who died on 19/2/1988 and on her death the property devolved on all her children, deceased plaintiff and defendants 1 to 7. Appellants are resisting the claim for partition RSA 1372/10 2 contending that during her life time Parvathy Devaki had executed a will on 8/11/1987 which, on her death was got registered and under the will the plaintiff who was living away from the mother was excluded and as Parvathy Devaki died after executing the will, her properties are not available for partition. Learned Munsiff on the evidence of Exts.A1 and B1 and B2 and oral evidence of PW1 and Dws.1 and 2 dismissed the suit finding that under Ext.B1 will, Parvathy Devaki had bequeathed the properties to her children except the plaintiff. Respondents 1 to 3 challenged the judgment before Sub Court, Kottarakara in A.S.34/2001. Learned Sub Judge on reappreciation of the evidence found that execution of Ext.B1 will was disputed by the plaintiff and the will could be relied on only on proof of the will and Ext.B1 will has not RSA 1372/10 3 been proved in accordance with law and therefore, plaint schedule properties are available for partition. Preliminary decree was passed directing division of the plaint schedule properties into equal eight shares and allotment of one such share to the plaintiffs. Even though learned Sub Jude held that Ext.B1 will is not proved, by mistake granted a further declaration that Ext.B1 will is invalid what was unwarranted in view of the earlier findings. Appeal is filed challenging the preliminary decree. 2. Learned counsel appearing for the appellants was heard. 3. Argument of the learned counsel appearing for the appellants is that an opportunity is to be granted to the appellants to call for the original of Ext.B1 from the RSA 1372/10 4 office of the Sub Registrar and to examine one of the attesting witnesses and thereby prove Ext.B1. It is argued that even if Ext.B1 will is not proved, plaintiff has not proved his case and therefore, the decree should not have been granted. 4. I do not find any substance in the argument of the learned counsel appearing for the appellants. It is not disputed that plaint schedule property originally belonged to Parvathy Devaki. It is also not disputed that she died on 19/2/1988 and plaintiff and defendants 1 to 7 are her children. If Parvathy Devaki died intestate, her properties would definitely be devolved on all her children including the plaintiff. Claim for partition could be denied only if the case of the appellants that Parvathy Devaki had executed RSA 1372/10 5 Ext.B1 will during her life time bequeathing her properties is accepted. Plaintiff is disputing the will. In such circumstances, it is for the preponders of the will to prove the will. Will is to be proved in accordance with law. Section 63 of Indian Succession Act provided the specific requirements in executing a will. The will is to be executed by the testator in the presence of at least two witnesses and those witnesses shall witness the testator signing the will or affixing his mark and the testator must witness the attesting witnesses affixing their signature in the will. Will has to be proved in accordance with Section 68 of Indian Evidence Act, if at least one attesting witness is alive and is available for examination and if not, as provided under Section 69. RSA 1372/10 6 5. First of all, the appellants did not produce the original will. What was produced before the Court is Ext.B1 which is only the registration copy of the will. Even according to the appellants the will was registered only subsequent to the death of the testator. Though as per Ext.B1 it was seen executed in the presence of two witnesses, none of them was examined. The only witness examined to prove the will is DW2 who is only a scribe. As he is not an attesting witness, his evidence cannot be taken as evidence as provided under Section 68 of Indian Evidence Act. There is no evidence to prove the signature of the testator or attesting witnesses as the original will was not produced and only a registration copy was produced. In such circumstances, First Appellate Court was fully justified in holding RSA 1372/10 7 that Et.B1 will was not proved and hence the properties are available for partition and directing division of the plaint schedule properties as sought for by the plaintiff. Though learned counsel vehemently argued that an opportunity is to be granted to the appellants to prove execution of the will no explanation was offered why the appellants did not take steps to produce the original will and why, at least one of the attesting witness was not examined. In such circumstances, it is not in the interest of justice to grant an opportunity as sought for, at this stage by remanding the suit. Appeal is dismissed as no substantial question of law is involved. M.SASIDHARAN NAMBIAR, JUDGE. uj.