IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 21ST FEBRUARY 2011 / 2ND PHALGUNA 1932 RSA.No. 550 of 2010 --------------------------------- AS.39/2007 of I ADDL.SUB COURT, THRISSUR OS.1519/2001 of III ADDL. M.C., THRISSUR .................... APPELANT/APPELLANT/DEFENDANT NO.1: KUMARAN, AGED 60 YEARS, S/O.LATE THARAYIL KARAPPAN, PARAPPUR DESOM, THOLOOR VILLAGE, THRISSUR TALUK. BY ADV. SRI.K.B.MOHANDAS SRI.LELLULAL T.G.THUNDATHIL RESPONDENTS/RESPONDENTS/PLAINTIFF & D2 & D3: 1. KAUSALYA, AGED 64 YEARS, W/O.ORUPARAMBIL SUBRAMANIAN, THOLOOR DESOM, VILLAGE, THRISSUR TALUK. 2. ASHOKAN, AGED 45 YEARS, S/O.PAMPUNGAL KOCHUKUTTAN, PARAPPUR DESOM, THOLOOR VILLAGE, THRISSUR TALUK. 3. GAYATHRI, W/O.ASHOKAN, DO. DO. BY ADV. SRI.DILIP J. AKKARA FOR R1 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 21/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.Sasidharan Nambiar, J. --------------------------------------- R.S.A.No.550 of 2010 --------------------------------------- JUDGMENT First defendant in O.S.No.1519/2001 on the file of III Additional Munsiff's Court, Thrissur is the appellant. First respondent is the plaintiff and respondents 2 and 3, defendants 2 and 3 in the suit. First respondent instituted the suit for partition of the plaint schedule property and for allotment of her one half share. Plaint schedule property originally belonged to Karappan as per Exhibit A1 purchase certificate, whereunder, the jenm right was assigned in favour of Karappan by the Land Tribunal. Karappan died and his rights devolved upon his wife Kunjammu, appellant, the son and first respondent, the daughter. Subsequently, mother Kunjammu also died. First respondent claimed that on the death of Kunjammu, only she and appellant are entitled to her rights and plaint schedule property is to be divided equally. Appellant resisted the suit contending that first respondent was given in marriage and subsequently father Karappan executed Exhibit B19 will, whereunder, the property was bequeathed in favour of the appellant with life interest of RSA 550/10 2 the mother and subsequently, mother executed Exhibit B18 will dated 10.9.1986, whereunder, her entire rights were bequeathed in favour of the appellant and therefore, appellant alone is entitled to the plaint schedule property and first respondent is not entitled to claim any right over the property. It is also contended that on the date of execution of Exhibit B18 will, appellant, along with his mother Kunjammu, assigned a portion of the property in favour of respondents 2 and 3 under Exhibit A2 sale deed and the assignees are in possession of the property effecting improvements like construction of a building and therefore, first respondent is not entitled to a decree for partition. 2. Respondents 2 and 3 filed a written statement contending that paying valuable consideration the property covered under Exhibit A2 sale deed was purchased by them from the appellant and his mother and since then they have been in possession of the property and spending Rupees Two lakhs, a building was constructed and in any case, if the property is found available for partition, the property covered under Exhibit A2 sale deed is to be allotted to the share of the appellant. RSA 550/10 3 3. Appellant filed O.P.No.17/2001 for a direction to the first respondent to receive Rs.2,000/-, which was directed to be paid to her under Exhibit A19 will. Learned Munsiff tried both the original petition and the suit together. On the evidence of PWs 1 to 3 and DWs 1 to 8 and Exhibits A1 to A6, B1 to B19, C1 and C2 and X1 and X2, learned Munsiff found that plaint schedule property originally belonged to Karappan and if he did not execute any testament, the property would devolve on his widow and children. Though Exhibit B19 will was set up, even Exhibit A2 sale deed executed by the appellant with the mother did not mention about the will, which will not be the case if the will was executed. Learned Munsiff also found that execution of Exhibit B19 will was not proved and therefore, based on Exhibit B19 will, appellant cannot claim that first respondent is not entitled to claim any right. Though Exhibit B18 will was produced, it was not proved as provided under Section 68 of Indian Evidence Act and therefore, based on Exhibit B18 also, appellant is not entitled to contend that first respondent is not entitled to claim any share. In such circumstances, learned Munsiff found that plaint schedule property is available for partition and passed a preliminary decree. Appellant challenged the judgment and RSA 550/10 4 decree before Sub Court, Thrissur in A.S.No.39/2007. Defendants 2 and 3 did not challenge the preliminary decree. Learned Sub Judge, on re-appreciation of evidence, confirmed the preliminary decree and dismissed the appeal. It is challenged in the second appeal. 4. Learned counsel appearing for the appellant and learned counsel appearing for the first respondent, who appeared as the appeal was filed with an application to condone the delay in filing the appeal and notice was issued in that application to the first respondent, were heard. 5. There is no dispute that if Karappan died without leaving a testament, his rights would devolve upon Kunjammu, the wife, appellant, the son and first respondent, the daughter. Appellant contended that Karappan had executed Exhibit B19 will dated 13.3.1977, whereunder, he bequeathed his entire rights in favour of appellant with a direction to pay Rs.2,000/- to the first respondent, providing that mother Kunjammu is having life interest in the property. Even, according to the appellant, subsequent to the death of Karappan, along with the mother, he executed Exhibit A2 registered sale deed in favour of defendants 2 and 3 alienating a portion of that property. As rightly found by RSA 550/10 5 the courts below, if Karappan had executed a will and the property vested with the appellant under the will, as claimed now, while assigning a portion of the property under Exhibit A2 sale deed, appellant would have definitely asserted his right under the will. There is no whisper about any will in Exhibit A2 which indicate that Exhibit B19 will is not genuine. It is the case of the appellant himself that on the date of execution of Exhibit A2 sale deed, his other executed Exhibit B18 will. Execution of Exhibit B18 will is also disputed. Even Exhibit B18 will does not trace out the right under Exhibit B19 will. Exhibit B18 shows that entire rights of the mother over the property were bequeathed in favour of her son. If she was having only a life interest as provided under Exhibit B19 will, there was no necessity to execute a will. In any case, the conspicuous absence of any mention about Exhibit B19 will, Exhibit B18 will and Exhibit A2 sale deed establish that Exhibit B19 will was not executed by the testator. Though it was contended that attesting witnesses to Exhibit B19 will were not available for examination and therefore, by the evidence of DW7 and the evidence on the signature of the testator seen in Exhibit B19, execution of Exhibit B19 will was proved, as rightly found by the courts RSA 550/10 6 below, evidence of DW6, the other witness, establish that he did not attest Exhibit B19 will. DW7 is only the wife of the scribe, who identified the signature of her husband as the scribe. There is no evidence of execution of the will. Therefore, undoubtedly, it is insufficient to establish execution of Exhibit B19 will either as provided under Section 68 or Section 69 of Indian Evidence Act. 6. What remains is only Exhibit B18 will. Though learned counsel appearing for the appellant argued that both the attesting witnesses are not available and therefore, the will is proved by the evidence of DW4, son of one of the attesting witnesses, there is no evidence to prove that the other attesting witness Ramankutty is not alive. It is to be proved that will was executed as provided under Section 63 of Indian Succession Act. It is also to be proved as provided under Section 68 or Section 69 of Indian Evidence Act. Section 63 of Indian Succession Act provides the special requirement in respect of execution of a will. It is to be proved that signature of the testator seen in the document is that of the testator and he affixed his signature in the presence of two witnesses, who had seen the testator signing and the testator must also see the attesting witnesses affixing their signatures in the will. Section 68 of Indian Evidence Act RSA 550/10 7 provides that a document, which is to be attested, is to be proved by examination of at least one of the attesting witnesses, provided, they are alive. Section 69 of Indian Evidence Act provides for proof in case both the attesting witnesses are not alive. Therefore, to invoke Section 69, there must be evidence that both the attesting witnesses to Exhibit B19 will are no more. When there is no evidence to prove that one of the attesting witnesses is not alive, the fact that DW4, son of one of the attesting witnesses, identified the signature of the other attesting witness seen in Exhibit B18 will, is insufficient to prove execution of the will. In such circumstances, finding of the courts below that Exhibit B18 will is not proved and therefore, appellant is not entitled to contend that first respondent is not entitled to claim her share over is perfectly correct and is in order. 7. Then the only question is regarding reservation. Learned counsel appearing for the appellant vehementally argued that as, under Exhibit A2 sale deed a portion of the property was assigned in favour of respondents 2 and 3, who put up a building to the knowledge of the first respondent, the said property is to be excluded from partition. Admittedly, first respondent is not a RSA 550/10 8 party to Exhibit A2 sale deed. Though courts below did not specifically stipulate it, as Exhibit A2 was executed by the appellant and the assignees were put in possession of the property and effected improvements, as far as feasible, that portion of the property is to be allotted to the share of the appellant at the time of division in the final decree. Learned counsel also argued that the building in the property was constructed by the appellant using his own funds and that was not disputed by the first respondent, when examined as PW1 and therefore, that house is to be reserved to the share of the appellant without valuation. The plaint itself shows that first respondent alleged that appellant is attempting to construct a building in the plaint schedule property. Written statement shows that the original building, which was in existence, was in a dilapidated condition and the eastern and southern portions had fallen and only one room was available and therefore, appellant applied for financial assistance from the Panchayat and building is to be renovated. At the time of evidence, PW1 did not dispute the fact that building was renovated. There was no case that first respondent had contributed anything for that renovation. In such circumstances, while dividing the property, as far as possible and RSA 550/10 9 feasible, the house is to be allotted to the appellant. If Commissioner finds that building was renovated, as first respondent has no case that she contributed for the renovation work, while valuing the building, expenses for the renovation are not to be valued. In such circumstances, I find no necessity to interfere with the preliminary decree. As there is no case for the first respondent that constructions, if any, in the property covered under Exhibit A2, were made by her or with her funds or with the income from the property, the building in the property covered under Exhibit A2 sale deed shall not be valued at the time of division, if it is allotted to the share of the appellant. As no substantial question of law is involved in the appeal, it is dismissed. 21st February, 2011 (M.Sasidharan Nambiar, Judge) tkv