IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 8TH JANUARY 2010 / 18TH POUSHA 1931 SA.No. 794 of 1996(C) ------------------------------- AS.NO.20/1992 OF PRL.SUB COURT, KOZHIKODE, OS.NO.843/1989 OF PRL. MUNSIFF COURT, KOZHIKODE-II. .................... APPELLANT/APPELLANT IN FIRST ASPPEAL - PLAINTIFFS: ------------------------------------------------------------------------------------- E.T. RAJENDRAN NAIR, SREENILAYAM, PUTHOOR AMSOM DESOM, KOZHIKODE TALUK. BY MR.M.C.SEN, SENIOR ADVOCATE, ADVS.MR.M.P.SREEKRISHNAN, MR.S.PRAKASH, SMT.A.PARVATHI MENON, SMT.SHAHNA KARTHIKEYAN. RESPONDENT/ RESPONDENT IN FIRST APPEAL - DEFENDANT: ------------------------------------------------------------------------------------------- E.T. SWARNALATHA, SABIJUSADHAN, MAVOOR AMSOM DESOM, KOZHIKODE TALUK. BY MR.A.P.CHANDRASEKHARAN, SENIOR ADVOCATE, ADV. MR.KODOTH PUSHPARAJAN. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 08/01/2010, ALONG WITH A.S NO. 431 OF 1995, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. THOMAS P JOSEPH, J. ---------------------------------------- S.A.Nos.794 of 1996 & A.S.No.431 of 1995 --------------------------------------- Dated this 08th day of January, 2010 COMMON JUDGMENT A.S.No.431 of 1995 arises from judgment and preliminary decree for partition passed by the learned II Additional Sub Judge, Kozhikode in O.S.No.310 of 1989. S.A.No.794 of 1996 arises from the judgment and decree of learned Principal Sub Judge, Kozhikode in A.S.No.20 of 1992 which arose from judgment and decree of learned Munsiff, Kozhikode-II in O.S.No.843 of 1989. Parties are referred to as plaintiff and defendants as in the trial court for convenience. 2. O.S.No.310 of 1989 is a suit for partition and separate possession of the share claimed by the plaintiff in the suit properties. Plaintiff's allegation is that the properties belonged to the late Raghavan Nair whose legal representatives are plaintiff and defendant Nos.1 to 5. Plaintiff claimed that herself and defendants 1 to 5 are entitled to equal share in item Nos.1 to 6 and a similar share in the half right of the late Raghavan Nair in item No.7. Defendant No.1 contended that item No.5 belonged to defendant No.3, the mother who on 11-01-1989 had executed an agreement for sale in his favour for a consideration of Rs.195,000/- receiving Rs.175,000/- by way of advance and putting him in possession of the property pursuant to that S.A.No.794 of 1996 2 agreement for sale. Further contention is that the late Raghavan Nair had assigned 8 cents from item No.1 and the said 8 cents is not available for partition. The late Raghavan Nair had executed Will dated 16-02-1988 bequeathing item Nos. 1 to 5 and the undivided 1/5 share in item Nos.6 in his favour. On the death of Raghavan Nair on 27-11- 1988 defendant No.1 became absolute owner of the said properties. Defendant No.1 in O.S.No.310 of 1989 filed O.S.No.843 of 1989 against the plaintiff in O.S.No.310 of 1989 seeking a decree for prohibitory injunction claiming that he is the absolute owner in possession of the properties referred to therein on the strength of the Will dated 16-02- 1988. Plaintiff in O.S.No.310 of 1989 resisted that suit contending that no such Will was executed, plaintiff and defendant No.1 (along with others) are co-owners and hence plaintiff in O.S.No.843 of 1989 is not entitled to get any decree for injunction. The suits were tried in two courts and disposed of. In O.S.No.310 of 1989 (suit for partition) contesting defendant No.1 who set up the Will produced a certified photocopy of that Will and the same was marked as Ext.B1. The original of that Will was produced by him in O.S.No.843 of 1989 (suit for injunction with only the plaintiff in O.S.No.310 of 1989 on the array of defendants) and marked as Ext.A1. In that suit defendant No.1 in O.S.No.310 of 1989 (Plaintiff in O.S.No.843 of 1989) examined PWs.2 and 3 to prove the alleged execution and attestation of the Will. PW2 who is shown as second attestor in the will denied having been an S.A.No.794 of 1996 3 attestor of the Will. He claimed that he was made to sign blank paper. Defendant No.1 (plaintiff in O.S.No.843 of 1989) examined PW3, a neighbour to identify the signature and handwriting of the first attestor in the Will who by then had expired. Plaintiff in O.S.No.310 of 1989 (sole defendant in O.S.No.843 of 1989) produced Exts.B1 to B5 to show that no such Will was executed by the late Raghavan Nair. Ext.B1 is a continuing guarantee bond allegedly executed by the late Raghavan Nair on 24-10-1977. Raghavan Nair had filed RCP.No.7 of 1987 for eviction of a tenant of one of the buildings involved in these suits. That petition ended in a dismissal. Raghavan Nair filed R.C.A.No.1 of 1988. It is while that appeal was pending that he died on 26-11-1988. Legal heirs of Raghavan Nair jointly filed affidavit dated 09-01-1989 claiming that consequent to the death of Raghavan Nair they are entitled to be impleaded as additional appellants in the RC appeal. Exts.B2 and B3 are the c.c of affidavit and petition to that effect. Ext.B4 is the copy of judgment and decree in R.C.A.No.1 of 1988 allowing eviction in favour of legal representatives of Raghavan Nair. According to the plaintiff in O.S.No.310 of 1989 (defendant in O.S.No.843 of 1989), pursuant to the judgment of the appellate court all legal representatives of Raghavan Nair jointly filed execution petition in R.C.P.No.7 of 1987 the c.c of which is marked as Ext.B5. 3. Trial court which considered O.S.No.843 of 1989 was not impressed by the evidence adduced by the plaintiff therein (defendant S.A.No.794 of 1996 4 No.1 in O.S.No.310 of 1989) regarding due execution and attestation of the Will (Ext.A1), held that suspicious circumstances surrounding its execution are not removed and found against execution and attestation of the Will. Holding that in the absence of the will plaintiff in O.S.No.843 of 1989 is only a co-owner along with other legal representatives of the late Raghavan Nair the suit for injunction (O.S.No.843 of 1989) was dismissed as per judgment dated 28-11- 1991. Plaintiff in O.S.No.310 of 1989 produced in that case a certified copy of the decree in O.S.No.843 of 1989. Defendant No.1 in O.S.No.310 of 1989 did not attempt at adducing any evidence in that case regarding the alleged execution and attestation of the Will and instead was satisfied by producing a certified photocopy of the Will which was marked as Ext.B1 (without any proof of its execution and attestation). Learned II Additional Sub Judge came to the conclusion that execution of the Will is not proved and consequently passed a decree for partition. That judgment and decree are under challenge in A.S.No.431 of 1995. Learned Principal Sub Judge who heard A.S.No.20 of 1992 arising from the dismissal of O.S.No.843 of 1989 took the view that since O.S.No.843 of 1989 is only a suit for injunction based on possession it is not necessary to go into the genuineness of Ext.A1, Will and the evidence adduced by the parties in respect of the respective contentions regarding the Will. Learned Principal Sub Judge was of the view that since the suit for partition was pending, (in fact, the suit for S.A.No.794 of 1996 5 partition had already been disposed of by learned II Additional Sub Judge by then) appropriate forum where genuineness or otherwise of the Will is to be agitated is the court where the suit for partition is pending and hence, set aside finding of the trial court regarding the genuineness of Ext.A1, Will. Learned Principal Sub Judge also held that since the question whether plaintiff in O.S.No.843 of 1989 is the absolute owner of the properties mentioned therein depended on the finding regarding genuineness of the Will, no decree for prohibitory injunction could be granted and accordingly dismissal of the suit for injunction was confirmed. That judgment and decree are under challenge in S.A.No.794 of 1996. 4. In S.A.No.794 of 1996, the following substantial question of law are framed for a decision. (i) Whether the lower courts were correct in ignoring the deposition of PW3 in the light of Section 71 of the Evidence Act, which is an exception to section 68 which requires the proof by at least one attesting witness? (ii) Whether the courts below were right in holding that the Will was not genuine for the reason that the attesting witness who was examined had become hostile? (iii) Whether the lower court were correct in the appreciation of the evidence of a hostile witness who had attested the Will ignoring the provisions contained in the S.A.No.794 of 1996 6 section 71 of the Act? It is contended by learned Senior Advocate appearing for the appellant/defendant in S.A.No.794 of 1996 that first appellate court ought to have decided the issue regarding genuineness of Ext.A1, Will since evidence has been adduced in that case. Alternatively it is contended that an opportunity may be given to the appellant in S.A.No.794 of 1996 to prove genuineness of Will in O.S.No.310 of 1989 which is the suit for partition. Learned counsel for respondents (plaintiff in O.S.No.310 of 1989 and sole defendant in O.S.No.843 of 1989) contended that on the evidence on record, it is eloquently clear that the Will produced is not genuine and hence the remand is unnecessary. Learned counsel submits that O.S.No.310 of 1989 seeking partition was filed on 24-08-1989 while O.S.No.843 of 1989 seeking injunction was filed only on 06-09-1989 but, the disputed Will was produced only in O.S.No.843 of 1989. The further argument raised by learned counsel is based on Exts.B1 to B5 in O.S.No.843 of 1989. Learned counsel points out that the admitted signature of late Raghavan Nair in Ext.B1 does not bear any resemblance with his disputed signature in Ext.A1, the disputed Will. It is also point out by learned counsel that though according to the plaintiff in O.S.No.843 of 1989 he learned about the existence of the Will only in August, 1989 even Ext.B5 (in O.S.No.843 of 1989), c.c of execution petition in R.C.P.No.7 of 1987 which is dated 10-08-1990 would show that no such S.A.No.794 of 1996 7 Will was in existence even as on that day. The argument is that if the Will were in existence then and plaintiff in O.S.No.843 of 1989 were aware of that Will in August 1989 as pleaded by him, he would not have signed the execution petition in R.C.P.No.7 of 1989 dated 10-08- 1990 as if he is only one of legal representatives of the late Raghavan Nair. In response, it is contended by learned Senior Advocate that plaintiff in O.S.No.843 of 1989 in his evidence as PW1 has given an explanation for being a party to Exts.B2 to B4 as, at that time he was not aware of existence of the Will and so far as Ext.B5 is concerned, PW1 has a case that he had not signed that execution petition. 5. It is unfortunate that none of the parties wanted a joint trial of these cases, though in both the cases the issue relevant for decision was the due execution and attestation of the Will. Very interesting is that in O.S.No.843 of 1989 plaintiff who wanted a finding as to the genuineness of the disputed Will did not implead all the legal heirs of Raghavan Nair. It is pointed out that in A.S.No.20 of 1992 arising from O.S.No.843 of 1989 respondent/defendant in that case had produced a copy of judgment and decree in O.S.No.310 of 1989 along with I.A.No.4811 of 1994 on 10-11-1994 but in spite of that, learned Principal Sub Judge who heard A.S.No.20 of 1992 under the impression that the suit for partition is pending trial, relegated the parties to that suit to get a decision on the genuineness of the Will. 6. Now the situation is that evidence regarding genuineness S.A.No.794 of 1996 8 or otherwise of the Will is produced in O.S.No.843 of 1989 where all the legal heirs of Raghavan Nair are not parties. Only the plaintiff in O.S.No.310 of 1989 is made a defendant in that suit. The first appellate court has left open the issue regarding genuineness of the Will to be decided in the partition suit which was already disposed of by then. In the partition suit no evidence regarding execution of the Will was also produced. Therefore, this court while considering the second appeal cannot go into the question of fact left open by the first appellate court. That is a matter which the courts below have to decide. Yet another difficulty is that any decision regarding genuineness of the Will in O.S.No.843 of 1989 cannot bind such of the legal heirs of Raghavan Nair who are not parties in that suit. In my view in the present situation decision regarding genuineness of the Will ought to have come in O.S.No.310 of 1989 where all the legal heirs are made parties or all the legal heirs should have been impleaded in O.S.No.843 of 1989. But unfortunately it did not happen. In that situation the proper and only course open is to remand the cases for a joint trial. Since the finding regarding genuineness of the Will has been vacated by the first appellate court in A.S.No.20 of 1992, the substantial questions of law framed in S.A.No.794 of 1996 does not arise for a decision. The application of the section 71 of the Evidence Act also do not arise for a decision in this second appeal. The questions framed are left open for consideration. S.A.No.794 of 1996 9 Resultantly, A.S.No.431 of 1995 and S.A.No.794 of 1996 are allowed by way of remand. The findings entered by the courts below in both the cases are set aside. O.S.No.310 of 1989 is remitted to the court of learned II Additional Sub Judge, Kozhikode for fresh disposal. O.S.No.843 of 1989 though filed in the court of learned Munsiff, Kozhikode-II, as it requires a joint trial along with O.S.No.310 of 1989 and exercising power under section 24 of the Code of Civil Procedure is remanded and transferred to the court of learned Second Additional Sub judge, Kozhikode. Learned Sub Judge shall try the suits jointly. It will be open to the plaintiff in O.S.No.843 of 1989 if he is so advised to implead the other legal heirs of Raghavan Nair also as defendants in O.S.No.843 of 1989. Both parties will get opportunity to adduce fresh evidence on the contentious issues. Learned II Additional Sub Judge shall decide the issues untrammeled by any of the findings or observations contained in any of the judgments. Parties shall appear in the court of learned Second Additional Sub Judge, Kozhikode on 01- 02-2010. Needless to say that the learned Sub Judge will give top priority to these cases since they are of the year 1989. Registry shall sent the record of both the cases to the court of learned Second Additional Sub Judge, Kozhikode. THOMAS P JOSEPH, JUDGE Sbna/