IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN FRIDAY, THE 20TH MARCH 2009 / 29TH PHALGUNA 1930 RSA.No.183 of 2009 (E) ---------------------------- AS.28/2006 of SUB COURT,KOCHI OS.459/2003 of ADDL.MUNSIFF COURT,KOCHI .................... APPELLANT/APPELLANT/PLAINTIFF ------------------------------------------ JOB, S/O. LATE JOSEPH KOCHERRY, AGED 47, K.P VI/312, KUMBALANGI MURI, KUMBALANGI VILLAGE, KOCHI - 682 007. BY ADV. SRI.T.B.THANKAPPAN SRI.V.P.RAMESAN SRI.T.T.HARIKUMAR RESPONDENTS/RESPONDENTS/DEFENDANTS ----------------------------------------------------- 1. ROSEY, W/O. LATE JOSEPH KOCHERY, K.P VI/312, KUMBALANGI MURI, KUMBALANGI, KOCHI-7. (DIED) 2. SEBASTIAN, S/O. LATE JOSEPH, AGED 44, KOCHERRY, K.P VI/312, KUMBALANGI MURI, KUMBALANGI, KOCHI - 682 007. 3. MICHAEL, S/O. LATE JOSEPH, AGED 39, KOCHERRY, K.P VI/312, KUMBALANGI MURI, KUMBALANGI, KOCHI - 682 007. 4. PHILOMINA, W/O. LATE AVIRACHAN, KOCHERRY, KUMBALANGI MURI, KUMBALANGY, KOCHI - 682 007. 5. SHIBU, S/O. LATE AVIRACHAN, AGED 28, KOCHERRY, KUMBALANGY, KOCHI - 682 007. 6. SHAJAN, S/O. LATE AVIRACHAN, AGED 26, KOCHERR, KUMBALANGY, KOCHI - 682 007. RSA.No.183 of 2009 (E) -2- 7. SHEEJA, W/O. XAVIER, AGED 30, KUNNATH HOUSE, CHERIYAKADAVU, CMS BUS STOP, KOCHI - 682 008. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 20/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ R. S. A. No.183 of 2009 ------------------------------------------------ Dated this the 20th day of March, 2009 JUDGMENT The plaintiff in a suit for partition on the basis of an alleged will executed in his favour by his father having lost his case concurrently in both the courts below, has come up in appeal before this Court assailing the concurrent verdicts. The respondents are the defendants in the suit. 2. The suit was filed by the appellant for a decree allowing partition of the scheduled property by dividing the scheduled property on the basis of Ext.A1 will dt.15/03/1989 allegedly executed by Joseph Kocherry who is the father of himself and defendants 2 and 3 as also the late husband of the 4th defendant alleging that ten cents of land situated in Sy. No.852/2,1 and 857/2 of Kumbalanghi village was owned by Joseph R. S. A. No.183 of 2009 -2- Kocherry, he having obtained the same under purchase certificate granted in relation to his kudikidappu on 10/06/1971; that the first defendant is the widow and plaintiff and defendants 2 and 3 as also deceased Avirachan whose LRs are defendants 4, 5 and 6; are children of the said Joseph Kocherry; that the father had gifted two cents of land in favour of the fourth defendant/Philomina from the Eastern side of ten cents of land in North- South direction wherein defendants 4 to 6 were residing; that from the remaining property of 8 cents and house situated therein scheduled to the plaint which was in possession and enjoyment of late Joseph Kocherry, four cents after leaving land for formation of road, along with the house therein was bequeathed to the plaintiff and two cents lying on the Southern side of properties in Sy. 852/2 was R. S. A. No.183 of 2009 -3- bequeathed to the second defendant and two cents lying adjacent to the Western side of the property gifted to the fourth defendant was bequeathed to the third defendant under Ext.A1 will dt.15/05/1989; that as per the sketch obtained from the Land Tribunal, the land available in Sy. No.852/2 after surrendering a portion for formation of road is 4.452 cents; that the testator died on 06/12/94 and after his death the said 4.452 cents of land and the residential house therein bearing Door No.KP.6/312 is in absolute possession and enjoyment of the plaintiff, and defendants 2 and 3 have become owners of the respective lands allotted to them under the will; that the plaintiff has effected mutation in respect of the property bequeathed to him and is paying tax; that the house also was assessed in his name; that the R. S. A. No.183 of 2009 -4- plaintiff has discharged all liability with respect to a loan availed from Fishermen Housing Scheme; that defendants 2 and 3 are not married and defendants 1 to 3 were residing with the plaintiff in his house; that after death of father, plaintiff had made request to defendants 2 and 3 for measurement of the scheduled property on the basis of the will, but they were not amenable though they did not dispute the will and were aware of the will; that the properties are lying contiguously, and for peaceful and separate enjoyment of the property, demarcation of the property as per the will is essential; that the defendants threatened that they would not allow the plaintiff to put up fence or wall on the boundaries of the property and hence, the suit for partition on the basis of the will. R. S. A. No.183 of 2009 -5- 3. A mandatory injunction directing defendants 2 and 3 to vacate the plaint 'B' schedule building and a permanent prohibitory injunction restraining defendants from causing any obstruction to the enjoyment of the scheduled property by the plaintiff was also prayed for. Defendants 1 to 3 resisted the suit contending that the father of the plaintiff and defendants 2 and 3 has not executed any will as alleged and he was not having power of testamentary disposition and was not having a sound mind during the alleged period of execution of the will to execute and register any will as he was mentally frustrated consequent on the assassination of his elder son/late Joseph and he had lost memory power as well, and thereafter, he had been under treatment till his death; that plaintiff had been accompanying the father to R. S. A. No.183 of 2009 -6- the hospital at that time and had been looking after the affairs in the house since the father was laid up; that the alleged will is a document caused to be got executed and registered by the plaintiff by exercising fraud and misrepresentation on late Joseph and the will is not one executed out of free will of the said Joseph; that no provision is made in the will for the first defendant who is the widow of the testator in the alleged will though himself and the first defendant were living in harmony and with affection and the non-inclusion of the first defendant as beneficiary in the will is suggestive of the fact that it is not executed of free will by late Joseph and is one got executed fraudulently by the plaintiff; that the said will is not binding on the defendants; that it is incorrect that after death of father the R. S. A. No.183 of 2009 -7- house and 4.452 cents of land is in the possession and enjoyment of the plaintiff; that the defendants came to know of the alleged will only after the commencement of this proceedings; that if at all the plaintiff has fabricated any revenue records in his favour, those are not binding on the defendants; that the usufructs from the coconut trees in the scheduled property were being taken jointly by the plaintiff and the defendants and the house bearing Door No.K.P.6/312 belongs jointly to the plaintiff and the defendants; that when the plaintiff requested for permission for constructing a house in front of the Tarwad house, he was permitted to construct a basement in front of the Tarwad house and thereafter, the plaintiff made attempts to measure the property including the said foundation and the house R. S. A. No.183 of 2009 -8- and that was obstructed by the first defendant; that the suit filed by the plaintiff on the basis of an un-sustainable will is to be dismissed; that the properties are not partible as per the will relied upon; that defendants 2 and 3 have no other assets other than that of deceased Joseph and plaintiff has no exclusive right either in the house or in the property and plaintiff has no right to direct defendants 2 and 3 to vacate from the scheduled house which is owned by them as well and the suit has to be dismissed. Defendants 4 to 7 remained absent and ex parte. 4. On the pleadings aforesaid, the trail court raised necessary issues for trial and considering the evidence adduced at trial which consisted of oral evidence of PWs.1 to 4 and DW1 and documentary evidence Exts.A1 to R. S. A. No.183 of 2009 -9- A17 and Exts.X1 to X3(a), dismissed the suit with costs. The appellant/plaintiff preferred appeal before the Sub Court, Kochi as AS.28/06 and the Sub Judge vide judgment dt.26/08/08 dismissed the said appeal with costs concurring with the verdict of the trial court. 5. It is vehemently contended before me by the learned counsel for the appellant that Ext.A1 is a registered will, that contention has been raised by the respondents, that it was got executed by impersonation, but that was repelled by the trial court; that attesting witnesses to Ext.A1 will having expired could not be examined and PW4/the scribe who was examined to prove the will having been very aged and senile could not give proper evidence in proof of will; that Ext.A17 affidavit by one of the attestors who R. S. A. No.183 of 2009 -10- is now no more, which had been attested by PW2/a Notary Public was produced in evidence, but that was not believed and accepted in proof of execution of the will by the courts below and that an application filed as I.A.502/07 before the first appellate court on 23/05/07 seeking leave to adduce additional oral evidence in the appeal by examining the persons mentioned in the witness list filed therewith though were witnesses who were competent to identify the signatures of the attestors, the first appellate court did not pass any order thereon and that in any event, the courts below were not justified in dismissing the suit as the suit is one for partition and even intestacy entitled the plaintiff to have a partition of the scheduled property by metes and bounds and to have his share separately allotted to him for R. S. A. No.183 of 2009 -11- convenient enjoyment. 6. The contention that the defendants had a case that Ext.A1 will was got executed by impersonation and that was found against by the courts below is devoid of merit as there is no contention for the defendants to that effect in their written statement. The defence was only that the appellant/plaintiff who was taking their father for treatment must have got executed Ext.A1 fraudulently without his consent and free will. 7. As per Section 63(c) of the Indian Succession Act, the will shall be attested by two or more witnesses each of whom has seen the testator signing or affixing his mark to the will or has seen some other person signing the will in the presence and by the direction of the testator or has received from the testator a personal acknowledgment of his R. S. A. No.183 of 2009 -12- signature or mark or the signature of such other person and each of the witnesses shall sign the will in the presence of the testator though it shall not be necessary that more than one witness be present at the same time and no particular form of attestation also shall be necessary. 8. Section 68 of the Evidence Act provides that if a document is required by law to be attested it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive and subject to the process of court and capable of giving evidence. 9. The proviso to Section 68 provides that it shall not be necessary to call an attesting witness in proof of execution of any document, not being a will, which has been R. S. A. No.183 of 2009 -13- registered in accordance with the provisions of Indian Registration Act, 1908 unless its execution by the person by whom it purports to have been executed is specifically denied. It is clear from the proviso itself that the proviso has no application in the matter of proof of execution of a will and that Section 68 has to be complied with. 10. Section 69 of the Evidence Act provides that if no such attesting witness can be found it must be proved that the attestation of one attesting witness at least is in his handwriting and that the signature of the person executing the document is in the handwriting of that person. 11. In the instant case no attempt was made by the plaintiff to examine anyone as witness to prove that attestation of one attesting witness at least is in his R. S. A. No.183 of 2009 -14- handwriting and that the signature of the person executing the document is in the handwriting of that person. 12. It is also submitted by the counsel for the appellant that the scribe examined in an attempt to prove the will through him was not successful as PW4/the scribe had become senile due to old age. According to the appellant, Ext.A17, an affidavit sworn to by one of the attestors attested by a Notary Public who has been examined as PW2 should have been accepted as evidence in proof of the will. The affidavit sworn to by an attestor swearing to the execution of the will by the testator though attested by a Notary who has tendered evidence also as PW2 was being rightly rejected by the courts below as the affidavit of the attestor could at best have been accepted only as proof affidavit filed in R. S. A. No.183 of 2009 -15- lieu of examination in chief. No opportunity could be afforded to enable the contesting parties to cross examine the attestor who has sworn to the affidavit on the sworn averments made in the affidavit. Evidence in chief examination without affording opportunity for cross examination could not have been accepted in evidence. 13. The further contention that I.A.502/07 was filed before the first appellate court to examine two witnesses who were familiar with the signatures of the attesting witnesses was not considered by the first appellate court and no orders also were passed thereon is also not a contention that can be considered by this Court when the first appellate court heard arguments in the appeal on 07/08/08 only and till then no orders were sought for to be got obtained on I.A.502/07 R. S. A. No.183 of 2009 -16- filed as early as on 23/05/07 despite lapse of more than one year and two months. 14. Counsel for the appellant submits that on all posting dates his counterpart who was appearing in the court below was present for a hearing of I.A.502/07, but the appellate court even at the time of hearing arguments in the appeal and disposing of the appeal did not make any observation at all of the appellant having filed I.A.502/07 seeking leave to examine two such witnesses. For not obtaining any order on I.A.502/07, the counsel for the appellant in the court below has to blame himself. If despite asking for leave to examine two witnesses before the first appellate court, the court did not pass any order thereon for more than one year, I fail to understand how the counsel argued the appeal in the court below on merits on R. S. A. No.183 of 2009 -17- 07/08/08. He could have very well submitted that the appeal be heard after passing an order on I.A.502/07 especially when he ought to know that if appeal itself is argued and the appeal is disposed of, there is no chance of affording an opportunity to allow the appellant to adduce additional oral evidence before the first appellate court. Even otherwise the appellant could have moved an application in the court below seeking for an order being passed on I.A.502/07 if at all the lawyer in the first appellate court felt that obtaining such leave as sought for in I.A.502/07 is necessary for establishing his case. It appears that even the counsel in the court below forgot of having filed I.A.502/07 when the appeal was argued on 07/08/08 after more than one year and two months of filing of the said I.A. However, that is no ground at R. S. A. No.183 of 2009 -18- this stage before the second appellate court to contend that the first appellate court should be found fault with for not allowing I.A.502/07 and the case is to be remanded. 15. The contention that was advanced by the counsel for the appellant that the courts below should not have dismissed the suit being a suit for partition and should have allowed partition though not as prayed for on the basis of the will, as the appellant is entitled to a share by intestacy even if Ext.A1 will is not established on evidence is also not tenable before this Court in the RSA as the prayer in the suit was to allow partition of the scheduled property by dividing the scheduled property on the basis of the will Ext.A1 and for delivery of possession of the shares as per the said will and the appellant/plaintiff did not ask for R. S. A. No.183 of 2009 -19- any relief of partition claiming right by intestacy. However, dismissal of this suit will not have any effect on right by intestacy which the plaintiff can claim even in the event of his claim under the will being disallowed for the reason that he being a propounder of the will has not been able to establish the genuineness of the will. Thus, I see no merit in this RSA and there is no question of law and much less any substantial question of law as is attempted to be made out, for consideration by this Court in the RSA. 16. In the result, I dismiss this RSA in limine. K.P.BALACHANDRAN, JUDGE kns/-