IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 11TH FEBRUARY 2011 / 22ND MAGHA 1932 RSA.No. 623 of 2005 --------------------------------- OS.70/2003 of PRL. MUNSIFF COURT, KOCHI AS.94/2003 of PRL. SUB COURT, KOCHI ........ APPELLANTS/APPELLANTS/DEFENDANTS: 1. LIVATE K.JOSEPH, S/O.JOSEPH, RESIDING AT C.C.15/1617, KOTTAPARAMBIL HOUSE, NAZARETH, NEAR S.B.I. QUARTERS, COCHIN-682 002. (DIED) LRS. IMPLEADED. 2. SALIM @ SALI, S/O.JOSEPH, NOW RESIDING AT H.NO.IV/62, C/O.RAHIM, NEAR AZHIKODE JETTY P.O., PIN-680 660. APPELLANTS 3 TO 6 ARE IMPLEADED AS THE Lrs. 3. MABLE LIVATE, AGED 56, W/O LATE LIVATE K.JOSEPH, C.C.15/1617, KOTTAPARAMBIL HOUSE, NAZARETH, NEAR S.B.I. QUARTERS, COCHIN-682 002. 4. GODWIN JOSE, AGED 29, S/O LATE LIVATE K.JOSEPH, DO. DO. 5. TREASA MARY FLOWER, AGED 28, D/O DO. DO. 6. RUSSEL JOSE, AGED 26, S/O DO. DO. DO. Impleaded as per order dated 11.11.2008 in IA 1942/2008. BY ADV. SRI.S.V.BALAKRISHNA IYER, SR. SRI.K.JAYAKUMAR SRI.P.B.KRISHNAN SRI.HARISH R. MENON SRI.R.SURAJ KUMAR RESPONDENTS/RESPONDENTS/PLAINTIFFS: 1. LAIJU JOSEPH, S/O.XAVIER, KOTTAPARAMBIL HOUSE, NOW RESIDING C/O.BABU, S/O.CHEEKUTTY MASTER, AT ARACKAL HOUSE, NEAR GEO COMPANY SEA FOODS, THOPPUMPADY, COCHIN-682 005. 2. XAVIER, S/O.JOSEPH, DO. DO. BY ADV. SRI.K.C.CHARLES SRI.A.BALAGOPALAN THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 11/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.Sasidharan Nambiar, J. --------------------------------------- R.S.A.No.623 of 2005 --------------------------------------- JUDGMENT Defendants in O.S.No.70/2003 on the file of Munsiff's Court, Kochi are the appellants. Respondents are the defendants. Suit was instituted for a declaration and injunction. Plaint schedule property originally belonged to late Joseph. His wife Thresia admittedly died in 1980. Appellants 1 and 2, Beatriz and Maxilla Thomas are their children. Joseph admittedly died on 16.2.1993. Respondents would contend that Joseph executed Exhibit A1 registered will dated 23.6.1992 in favour of first respondent, son of the second respondent and under the will, first respondent alone is entitled to the property. It is based on the said claim, suit was instituted. Appellants would contend that Exhibit A1 will was not executed by Joseph and on the death of Joseph, his rights, in the absence of a testament, would devolve on all the children and under Exhibit B7, second appellant, Beatriz and Maxilla Thomas released their right in favour of the first appellant and respondents are not entitled to the decree sought for. RSA 623/05 2 2. Learned Munsiff, on the evidence, granted a decree. It was challenged before Principal Sub Court, Kochi in A.S.No. 94/2003. By judgment dated 17.11.2004, learned Sub Judge modified the judgment, upholding the will. Modification was only in respect of the amount payable under the will. The second appeal is filed challenging the judgment and decree. 3. Appeal was admitted on the following substantial questions of law formulated in the appeal memorandum: A. Has not the lower appellate court erred in law in failing to exercise jurisdiction under Section 107(2) of the code of Civil Procedure and under Order 26 Rule 10A and Order 41 Rule 27 of Code of Civil Procedure while it rejected I.A.No.1750 of 2004 and I.A.No.1664 of 2004 and ignored the prayers in I.A.No.1751 of 2004? B. Has the execution of the alleged will Exhibit A1 been proved in terms of Section 68 of the Evidence Act and Section 63 of the Indian Succession Act? C. Is there any reliable evidence in the case to prove that the signatures found in Exhibit A1 are that of Joseph, the father of the appellants? D. Has not the lower appellate court erred in law in proceeding on the basis that when the authenticity of the disputed signatures is proved, execution should be taken to have been proved? RSA 623/05 3 E. Have the propounders of the alleged will Exhibit A1 removed the suspicious circumstances surrounding the execution and registration thereof and is the decision of the lower appellate court legally sustainable? F. Is the duty of removing suspicious circumstances dependent on the pleadings of the parties who say that the will was never executed? G. Is not the will Exhibit A1 highly improbable and unnatural on the face of it and will not a court of law insist on clear proof of circumstances justifying the dispositions made? 4. Learned senior counsel appearing for the appellants and learned counsel appearing for the respondents were heard. 5. Records of the first appellate court show that I.A.Nos. 1664/2004, 1750/2004 and 1751/2004 were filed by the appellants. The prayer in I.A.No.1664/2004 was to send Exhibit A1 will to an expert to find out whether the signature of the testator is really that of the testator. I.A.No.1750/2004 was filed to call for the records in O.S.No.306/1992. I.A.No.1751/2004 was filed under Order XLI Rule 17 of Code of Civil Procedure to receive the two documents produced thereunder. Respective petitions show that they were posted for objections and finally disposed by separate orders. Order in I.A.No.1664/2004 shows RSA 623/05 4 that petition was not considered on merits and was closed as appeal was disposed. Order in I.A.No.1750/2004 shows that the said application was also not disposed on merits and instead, closed since the appeal is disposed. the prayer in I.A.No.1751/2004 though was to receive the documents as additional evidence, it was disposed on 17.11.2004 as follows: “Produced the document. Closed.” Nothing else is necessary to establish that learned Sub Judge has not applied his mind at all. When the prayer is to receive the documents as additional evidence, learned Sub Judge should have considered the question whether those documents could be received as additional evidence and for that purpose, must decide whether the requirements of Rule 27 Order XLI were satisfied. Instead, the order shows that documents produced. Closed. It is absolutely clear that learned Sub Judge has not disposed the appeal on merits. 6. Though learned counsel appearing for the respondents argued that in view of the findings of the learned Munsiff, as well RSA 623/05 5 as the findings of the learned Sub Judge, there is no necessity to entertain the applications, learned Sub Judge cannot close the applications as has been done in this case, without considering them on merits. Learned Sub Judge must consider whether the documents sought to be produced are necessary and whether they could have been produced by the appellant, if due diligence was shown or whether those documents are necessary to pronounce the judgment. Similarly, when the will is disputed and even the signature of the testator was in dispute and comparison of the signature by the court with the available signatures on record, without the aid of an expert, was hazardous, learned Sub Judge should not have closed the application without considering whether report of an expert is necessary or not. Similarly, when the case of the appellants is that deceased testator was not aware of the pendency of O.S.No.306/1992, as summons was not served on him, which was mentioned in the disputed will, learned Sub Judge should have considered the application to call for the records on merits. In such circumstances, there is no other go but to set aside the judgment and decree and direct first appellate court to dispose the appeal afresh, after considering all RSA 623/05 6 the applications on merits in accordance with law and pass appropriate orders. Appeal is allowed. Judgment of the Principal Sub Judge, Kochi in A.S.No.94/2003 is set aside. A.S.No.94/2003 is remanded to the first appellate court. I.A.Nos.1664/2004, 1750/2004 and 1751/2004 are restored after setting aside the respective orders. Sub Judge shall hear them along with the appeal and pass appropriate orders on merits, in accordance with law. Learned Sub Judge is at liberty to allow those applications or dismiss them. But he has to apply his mind and consider them on merits. Parties are directed to appear before Principal Sub Court on 01.03.2011. Learned Sub Judge to dispose the appeal expeditiously. Send back the records to the first appellate court forthwith. 11th February, 2011 (M.Sasidharan Nambiar, Judge) tkv