IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 2ND JULY 2009 / 11TH ASHADHA 1931 FAO.No. 12 of 2007() -------------------- AGAINST THE ORDER IN IA.3069/05 IN IA.1419/04 IN OS.160/2004 of III ADDL.SUB COURT, ERNAKULAM .................... APPELLANT/PLAINTIFF/RESPONDENT: ----------------------------------------------------- THOMAS GEORGE, S/O.LATE C.T. GEORGE, AGED 39, ICI, STAR RETREAT, INDIRA SMARAKA ROAD, VYTTILA, KOCHI-19. BY ADV. SRI.S.SHYAM SRI.G.SUBRAMANIAN RESPONDENT(S)(PETITIONER & RESPONDENT) DEFENDANT: -------------------------------------------------------------------------------------- 1. MATHEW MANUEL, S/O.LATE T.A. MANUEL, AGED 33, THENAMPARAMBIL HOUSE, KATHRIKADAVU ROAD, ERNAKULAM. 2. METTILDA SUNNY, W/O.SUNNY MATHEW, AGED 39 YEARS, `SAMARATH', AKKARA HOUSE, EDAPPALLY POST, ERNAKULAM, KOCHI-24. ADV. SRI.R.KRISHNA RAJ FOR R1 METTILDA SUNNY PARTY THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 02/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMAN & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O. No. 12 of 2007 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 2nd day of July, 2009. JUDGMENT Bhavadasan, J, Aggrieved by the order dated 30.11.2006 in I.A. 3069 of 2005 in I.A. 1419 of 2004 in O.S. 160 of 2004, the respondent before the court below comes up in appeal. Parties and facts are hereinafter referred to as they are available before the court below. 2. The suit was for money and by order in I.A.1419 of 2004, there was an attachment of the property. The first respondent herein filed I.A. 3069 of 2005 for lifting the attachment over the property claiming that the property absolutely belongs to him. According to him, in fact the property originally belonged to his father and on his death on the basis of a will he became the owner of the property. Hence, it was pointed out that the property is not liable to be attached and the attachment be lifted. 3. The claim of the petitioner was resisted by the plaintiff by pointing out that the defendant in the suit had F.A.O. 12/2007. 2 subsisting right over the property. The court accepted the will and therefore lifted the attachment over the property. The said order is assailed in this appeal. 4. Learned counsel appearing for the appellant pointed out that the claim petitioner succeeded on the basis of a will said to have been executed by the father of the petitioner. It is pointed out that attesting witnesses were not examined and the execution of the will has not been proved as contemplated under Section 68 of the Evidence Act. In such circumstances, no reliance can be placed on the will by the court below. 5. It is to be noticed that the claim petition was allowed on the basis of Ext.P1, a copy of the will executed by Sri. T.A. Manual. The order of the court below does not show as to what had happened to the original will, so also the first respondent had adduced no evidence or examined any of the attestors to prove the due execution of the will and to show that the testator had a sound disposing state of mind at the time of execution of the will. In other words, the will has not been proved as required under law. F.A.O. 12/2007. 3 In the result, this appeal is allowed, the impugned order is set aside and the matter is remanded to the court below for fresh consideration in the light of the observations contained in this judgment. P.R. Raman, Judge P. Bhavadasan, Judge sb.