IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 25TH JUNE 2010 / 4TH ASHADHA 1932 AS.No. 173 of 2001(E) --------------------- OS.377/1996 of SUB COURT, NEDUMANGAD .................... APPELLANT(S): PLAINTIFF: ------------------------------------------ PUSHPAVATHY, D/O.KAMALAKSHY, AGED 53, RESIDING AT LATHA BHAVAN, PATTAH, PATHIRIKARI MURI, VANCHIYOOR VILLAGE, TRIVANDRUM. BY ADV. SRI.R.S.KALKURA RESPONDENT(S): DEFENDANTS 3 TO 5 & ADDITIONAL DEFENDANTS 6 TO 8: ------------------------------------------------------------------------------------------------------------------ 1. ANIRUDHAN, S/O.MRITHINJAYAN, AGED 48, RESIDING AT KAMALA BHAVAN, NEDUMAN MURI, VATTAPPARA VILLAGE. 2. G.MUKUNDAN NAIR, SARASWATHY VILASAM, AYURVEDIC HOSPITAL, MUKKOLAKAL, KALLAYAM P.O.,KALLAYAM 3. RETNAKARAN, S/O.VASUDEVAN, AGED 57, BREEZ BHAVAN, THEKKEVEETTU MURI, CHITTIVILAKAM VILLAGE. 4. A.GEETHA DEVI, BEENA VIHAS, MARUTHOOR, NEDUMAN MURI, VATTAPPARA VILLAGE. 5. BIJULAL, S/O.SOMAN, BEENA VIHAS, MARUTHOOR, NEDUMAN MURI, VATTAPPARA VILLAGE. 6. SUBHASH, S/O. VISWANATHAN, BREEZ BHAVAN, THEKKEVEETU MURI, KUDAPPANAKUNNU VILLAGE, TRIVANDRUM. (DEFENDANTS 1 AND 2 DIED AND THEIR LEGAL REPRESENTATIVES ARE IMPLEADED AS RESPONDENTS 4,5 AND 6 AS PER ORDER IN I.A.NO.268/97 AND 714/96 RESPECTIVELY OF THE SUB JUDGE, NEDUMANGAD) R1 TO R4 BY ADV. SRI.ABRAHAM MATHEW (VETTOOR), SRI.J.JOHNSON. R6 BY ADV. SRI.V.SURESH THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 25/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss M.N. KRISHNAN, J. ........................................... A.S.NO.173 OF 2001 ............................................. Dated this the 25th day of June, 2010. J U D G M E N T This is an appeal preferred by the plaintiff in O.S.No.377/1996 on the file of the Subordinate Judge's Court, Nedumangad against the judgment and decree dismissing a suit for partition. The brief facts necessary for the disposal of the appeal are stated as follows: 2. Admittedly the plaint schedule property belonged to one Sidhardhan. It is also admitted that Sidhardhan committed suicide. At the time of death of Sidhardhan, he did not have wife and children or his mother. But was survived by his sister - the plaintiff, Soman -D1, Viswanathan D2 and Anirudhan D3. During the pendency, Soman died and his legal representatives are impleaded as D6 and D7, Viswanathan (D2) died and his legal representative is impleaded as D8. It is the case of the plaintiff that on the death of Sidhardhan as per the provisions of the Hindu Succession Act, the property had devolved upon her and D1 to D3 and therefore she is entitled one out of three shares : 2 : A.S.NO.173 OF 2001 in the plaint schedule property. 3. On the other hand, the defendants would contend that the plaintiff does not have any right in the property of deceased Sidhardhan for the reason that before the death of Sidhardhan, he had executed a Will which is marked as Ext.B10 whereby the plaintiff is not entitled to any share over the property. It is also their case that before Sidhardhan committed suicide, he had written a note in which also he had made mention to disinherit the plaintiff. Before considering the validity of the Will also, the question to be considered is whether deceased Sidhardhan had other legal representatives. It is submitted that Sidhardhan did have another brother, who had died before him. But as per Schedule 2 of the Hindu Succession Act when brother and sister are alive, they take it together and exclude the brother's children. Therefore there cannot be any dispute that if the Will is not there, the property would belong to the plaintiff and D1 to D3 equally. 4. Now about the Will. This unfortunate man lost his wife and child and ultimately he also committed suicide and : 3 : A.S.NO.173 OF 2001 the so called kith and kin are now fighting for his properties. This shows the way in which the moral standard has come down. 5. Ext.B10 is an unregistered Will. I am conscious of the fact that a Will need not be registered. A perusal of the Will would show that in the last sentence of the Will, name Sidhardhan is written and it is signed. The two attesting witnesses to the document are (1) Nadarajan who is an Assistant in LIC of India and (2) one Sukumara Panicker. Will is to be proved as contemplated under Section 63 of the Indian Succession Act. Under Section 63(c) of the Indian Succession Act a Will has to be attested by two or more witnesses each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no : 4 : A.S.NO.173 OF 2001 particular form of attestation shall be necessary. So, the section mandates that affixing of the signature by the testator has been witnessed by two or more witnesses. It is also an imperative stipulation that each of the witnesses shall sign in the presence of the testator. So it is necessary that there must be evidence to speak that testator had affixed his signature and that the testator had seen both the attesting witnesses affixing their signature in the Will. 6. The learned counsel for the appellant has brought to my notice a decision of the Supreme Court of India reported in Janaki Narayan Bhoir v. Narayan Namdeo Kadam (AIR 2003 SC 761). In that decision, it has been specifically stated that at least one attesting witness has to be called for proving due execution of the Will as envisaged under Section 63. But what is significant and to be noted is that one attesting witness examined should be in a position to prove the execution of the Will. 7. The other decision referred to is the one reported in Yumnam Ongbi Tampha Ibema Devi v. Yumnam Joykumar Singh (2009 (4) SCC 780). In that case also the : 5 : A.S.NO.173 OF 2001 Supreme Court has made it very clear that attesting witness should speak not only about testator's signature or affixing his mark to the Will but also that each of the witnesses had signed the Will in the presence of the testator. It is in this background one has to analyse the materials before the court. 8. DW2 is the attesting witness. Unfortunately not even a single question is seen put in the chief examination regarding statutory compliance of Section 63 of the Indian Succession Act. What he says in the chief examination is that he had signed the Will and he had seen the said Sidhardhan affixing his signature. Not even a single question is put regarding the other witness or the attestation or seeing the signature by this witness. No evidence is adduced in this case to establish that DW2 had seen the attesting witness affixing his signature in front of the testator. It might not have been a requirement, had the second attesting witness been examined. The learned counsel would contend that the second attesting witness is dead but, according to him, it is only a hear say : 6 : A.S.NO.173 OF 2001 information. Even if it is assumed that the said Nadarajan is dead, it is all the more responsibility of the propounder of the Will to prove the attestation of the Will in accordance with Section 63 of the Indian Succession Act. There is absolutely no evidence with respect to the mandate required under Section 63 of the India Succession Act. Therefore, when the attestation of the Will by the second attesting witnesses is not proved before the court, it becomes a document which cannot be taken as validly proved in order to enter into a finding on the basis of the same. 9. The learned counsel would contend that in some other proceedings this Will had been produced and the present plaintiff has been impleaded as a party and she did not contest the case. It is a suit for realisation of the money due to Sidhardhan. So far as the present plaintiff is concerned, one could not say that she had contested the case or admitted the execution of the Will or in other words there was no admission by the plaintiff regarding the genuineness of the Will in the previous proceedings and she had not also consented to the correctness of the Will in the : 7 : A.S.NO.173 OF 2001 said proceedings. Therefore I need not go into other questions like the surrounding circumstances of the case and clouding of suspicion on the genuineness of the Will since attestation is not properly proved as contemplated under Section 63 of the Indian Succession Act. A propounder cannot claim right under the said document Ext.B10. Then the next question is regarding the some writings rendered by Sidhardhan before he committing suicide. He had written 2-3 pages and there is a recital in that writing to exclude the sister from inheriting any property. One cannot characterise it as a Will or codicil because both requires attestation and therefore that document is not legally sufficient to throw away the right of the plaintiff over the property. 10. The learned counsel for the defendants in the belated stage contended that the suit is bad for non-jointer of parties. (1) On account of non impleadment of the heirs of the deceased brother and (2) non impleadment of the legal representatives of D1 and D2. So far as the predeceased brother is concerned since the brother had predeceased : 8 : A.S.NO.173 OF 2001 Sidhardhan, they do not get any right over the property. So far as the legal representatives of D1 and D2 are concerned, certainly they are entitled to get right over the property and when the impleading petition was filed by the plaintiff, the contesting defendants did not raise any contention regarding the non joinder and it is also found that the issue regarding non joinder is not raised. At any rate, the right of the said brothers can be allotted to the person who is in the party array and if there are other legal representatives, they will be entitled to derive from the said persons. As the litigation had started in the year 1996, there may shall not be further prolongation. 11. From these discussions, I find that the finding of the trial court upholding the validity of Ext.A10 is to be set aside and I do so and the plaintiff is entitled to share as legal heir of Sidhardhan. Therefore the judgment and decree of the trial court are set aside and the appeal is allowed and a preliminary decree for partition is passed as follows: (1). The plaint schedule properties be divided into 4 equal shares and allot one such share to the plaintiff. (2) : 9 : A.S.NO.173 OF 2001 Defendants 1 to 3 are entitled to get one share each and as D1 and D2 are dead and it is submitted that some of the legal representatives are on the party array, the share due to D1 and D2 be alloted to the parties who is before the court from whom if there are any other legal representatives, they can claim their right. (3) it is also made clear that if there are any equity requires consideration that has become necessary on account of construction of any building by the defendants, let it be considered in the final decree proceedings. Amicable settlement can be tried between the parties. M.N. KRISHNAN, JUDGE. cl : 10 : A.S.NO.173 OF 2001 M.N. KRISHNAN, J. ........................................... A.S.NO.173 OF 2001 ............................................. 25th day of June, 2010. J U D G M E N T