IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 9TH DECEMBER 2009 / 18TH AGRAHAYANA 1931 AS.No. 475 of 1999(C) --------------------- OS.342/1995 of SUB COURT,KATTAPPANA .................... APPELLANT(S): DEFENDANTS 2 TO 5 -------------- 1. T.A.MATHEW @ THANKACHAN, AGED ABOUT 54 S/O ABRAHAM, PLAMOOTTIL HOUSE, KUMILY P.O. LABBAKANDAM, KUMILY VILLAGE, PEERMADE TALUK 2. T.A.SAMUEL @ ANIYAN, AGED ABOUT 51 YEARS S/O ABRAHAM, PLAMOOTTIL HOUSE, PRIYA TRADERS MARKET , MUVATTUPUZHA, MUVATTUPUZH VILLAGE ERNAKULAM DISTRICT 3. T.A.ALEXANDER @ JOY, AGED ABOUT 40 YEARS S/O ABRAHAM, PLAMOOTTIL HOUSE KOCHUKARUMTHARUVI P.O. ELAPPARA VILLAGE, PEERMADE TALUK 4. T.A.SYMON @ SHAJI, AGED ABOUT 37 YEARS S/O ABRAHAM, PLAMOOTTIL HOUSE, C/O SHAJAN VARGHESE, THURUTHIYIL HOUSE, ALLAPRA P.O. PERUMBAVOOR TALUK, ERNAKULAM DISTRICT BY ADV. SRI.GEORGE THOMAS (MEVADA) RESPONDENT(S): PLAINTIFFS/FIRST DEFENDANT --------------- 1. MARIAMM PAUL @ OMANA, AGED 46 YEARS D/O ABRAHAM, PLAMOOTTIL HOUSE, W/O P.M.PAUL PULIKKAL KUDIYIL, ELAPPARA P.O., ELAPPARA VILLAGE PEERMADE TALUK 2. SARAMMA JOHN @ THANKAMMA, AGED 53 YEARS D/O ABRAHAM, PLAMOOTTIL AND W/O JOHN VALIPLACKAL HOUSE, KALTHOTTY P.O., AYYAPPANCOIL VILLAGE UDUMBANCHOLA TALUK 3. T.A.MATHEW @ KUNJUMON, AGED ABOUT 56 YEARS S/O ABRAHAM, PLAMOOTTIL HOUSE, VANDIPERIYAR P.O. MANCHUMALA VILLAGE, PEERMADE TALUK ADV. SRI.RAJU K.MATHEWS THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 28/08//2009, THE COURT ON 9/12/2009 DELIVERED THE FOLLOWING: P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - A.S.No.475 OF 1999 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 9th day of December, 2009 JUDGMENT The challenge in this appeal by the defeated defendants 2 to 5 is to the decree and judgment of Sub Judge, Kattappana in O.S.No.342/1995 dated 31-10-1998 passing a preliminary decree for partition and separate possession of plaintiff's 2/7 share over the plaint schedule properties. 2. The case of the respondents 1 and 2/plaintiffs as shaped in evidence before the lower court in brief is this : The plaint schedule property consisting of 5 cents in Sy.No.132/4 in Manjumala village belonged to late Sosamma Abraham and on her death, the same devolved on plaintiffs and defendants in equal shares. The first defendant is residing in the house therein . Plaintiffs 1 and 2 are the daughters and defendants 1 to 5 are the sons of deceased Sosamma Abraham. Plaintiffs claimed partition and separate possession of their 2/7 share over the properties. 3. Defendants 1 to 5/appellants and third respondent claimed AS.No.475/1999 Page numbers exclusive right over the plaint schedule properties under the will Ext.B1 dated 23/6/1985 allegedly executed by the deceased Sosamma Abraham. 4. On the side of defendants DW1 to DW3 were examined and Ext.B1 was marked. No evidence was adduced by the plaintiffs. 5. The learned Sub Judge on an appreciation of evidence found that the defendants failed to prove the due execution of the will Ext.B1 and passed a preliminary decree for partition as prayed for. The defendants 2 to 5 challenge the said decree and judgment of lower court. 6. The counsel for appellants /defendants 2 to 5 argued that the lower court should have accepted the evidence of DW1 to DW3 regarding the execution of the will Ext.B1 and dismissed the suit. Counsel for respondents 1 and 2/plaintiffs supported the judgment of lower court. 7. The following points arise for consideration : 1) Whether the due execution of the will Ext.B1 by the late Sosamma Abraham is proved ? AS.No.475/1999 Page numbers 2) Whether there are any suspicious circumstances surrounding the execution of Ext. B1 ? and if so whether the same has been satisfactorily explained by the defendants ? 3) Whether the preliminary decree for partition granted by the lower court can be sustained ? Point No.1 8. The main question which arises for consideration is whether defendants have proved the due execution of the will Ext.B1 dated 23/6/1985 by the deceased Sosamma Abraham. 9. Section 68 of Evidence Act postulates the mode and manner of proof of execution of document which is required by law to be attested stating that the execution must be proved by at least one attesting witness, if attesting witness is alive and subjected to the process of court and capable of giving evidence. 10. Section 63 of Indian Succession Act provides that for the due execution of a will : AS.No.475/1999 Page numbers 1) the testator should sign or affix his mark to the will; 2) the signature or the mark of the testator should be so placed that it should appear that it was intended to give effect to the writing as a will; 3) the will should be attested by two or more witnesses , and 4) each of the said witnesses must have seen the testator signing or affixing his mark to the will and each of them should sign the will in the presence of the testator. 11. In Section 3 of Transfer of Properties Act, the word 'attested' has been described thus : “ 'attested', in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some AS.No.475/1999 Page numbers other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgment of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary”. 12. The above principle is reiterated by the Apex Court in Benga Behera v. Braja Kishore Nanda (2007(9) SCC 728), Anil Kak v.Sharada Raje (2008(7) SCC 695) and Yumnam Ongbi Tampha Ibema Devi v. Yumnam Joykumar Singh and others (2009 (4) SCC780). 13. In Yumnam Ongbi Tampha Ibema Devi v. Yumnam Joykumar Singh and others (2009 (4) SCC 780), it has been further held thus : “ The attestation of the will in the manner AS.No.475/1999 Page numbers stated above is not an empty formality. It means signing a document for the purpose of testifying of the signatures of the executant. The attested ( sic attesting ) witness should put his signature on the will animo attestandi. It is not necessary that more than one witness be present at the same time and no particular form of attestation is necessary. Since a will is required by law to be attested, its execution has to be proved in the manner laid down in the section and the Evidence Act which requires that at least one attesting witness has to be examined for the purpose of proving the execution of such a document.” 14. In the light of the principles laid down in the above decisions, I shall consider the evidence adduced by the defendants in this case to see whether they have succeeded in proving the due execution of the Will Ext.B1. AS.No.475/1999 Page numbers 15. DW1 is the second defendant. He testified that at the time of execution of the will Ext.B1 he and all defendants were present, that Ext.B1 was written by DW3 Ninan Thomas, the brother of testator and was signed by the testator deceased Sosamma Abraham. But he stated that Sosamma put her thumb impression in Ext.B1. But no such thump impression is seen in Ext.B1. DW1 was bit aware whether the testator put her thumb impression or signature in the will. That being so, the evidence of DW1 cannot be relied on regarding the execution of Ext.B1. One of the attestors Jacob is no more. DW2 Mr.Xavier another attestor to Ext.B1 did not see Sosamma signing in Ext.B1. Therefore, the lower court is right in not accepting his evidence. DW3 is Thomas who is the scribe of Ext.B1 and also an attestor. He also testified that Sosamma put her thumb impression. DW3 would say that Ext.B1 was written in the evening, while DW2 would say that it was written in the morning. The above discrepancies in the evidence of DW1, DW2 and DW3 casts serious doubt regarding the due execution of Ext.B1. Therefore, I am of the view that defendants have failed to prove the due execution of Ext.B1. AS.No.475/1999 Page numbers 16. That apart, defendants have failed to explain the suspicious circumstances regarding the execution of the will Ext.B1. Exclusion of plaintiffs who are the daughters of the testator is a suspicious circumstance. The defendants have failed to explain the said suspicious circumstance. For all these reasons, I hold that defendants have failed to prove the due execution of Ext.B1, will. The finding of lower court on this point is confirmed. That being so, the impugned judgment and decree passed by the trial court is confirmed and the appeal is dismissed with costs. P.Q.BARKATH ALI JUDGE sv. AS.No.475/1999 Page numbers