IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 15TH SEPTEMBER 2009 / 24TH BHADRA 1931 RSA.NO. 673 OF 2009() ------------------------------- AS.26/2002 OF ADDITIONAL DISTRICT AND SESSIONS COURT, KOLLAM OS.282/1992 OF ADDL.SUB COURT,KOLLAM .................... APPELLANT – APPELLANT - PLAINTIFF: ------------------------------------------------ G.GOPINATHAN PILLAI, S/O.GOPALA PILLAI, RESIDING AT LAKSHMIVILASAM, MANAKKATTUCHERRY, VADAKKEVILA VILLAGE, KOLLAM. BY ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE SRI.T.C.SURESH MENON SRI.B.MOHANLAL RESPONDENT(S): RESPONDENTS/DEFENDANTS 1 & 2: -------------------------------------------------------------------------- 1. G.VENUNATHAN PILLAI, S/O.GOPALA PILLAI, RESIDING AT LAKSHMIVILASAM, MANAKKATTUCHERRY, VADAKKEVILA VILLAGE, KOLLAM. 2. SURESHKUMAR, S/O.MADHAVAN PILLAI, RESIDING AT VINI VIHAR, VALATHUNGAL CHERY, ERAVIPURAM VILLAGE, KOLLAM. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 15/09/2009 ALONG S.A. NO.675 OF 2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = R.S.A. No.673 of 2009 and R.S.A. No.675 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 15th day of September, 2009 J U D G M E N T ---------------------- The Second Appeals are brought from the common judgment and decree of learned Additional District Judge, Kollam in A.S. Nos.26 of 2002 and 25 of 2002, respectively which arose from the common judgment and decree of learned Additional Sub Judge, Kollam in O.S. Nos.282 of 1992 and 600 of 1992. In O.S. No.282 of 1982 prayer was for declaration of title, declaration that Ext.A6, Will (document No.28 of 1977) is null and void and for consequential reliefs. That suit was filed against plaintiff and defendant No.2 in O.S. No.600 of 1992 where relief claimed was declaration of title and for fixation of boundary or in the alternative recovery of possession of property based on Ext.A6, Will No.28 of 1977. In O.S. No.282 of 1992 plaintiff set up an earlier Will (Ext.B1) No.3 of 1967 dated 24.1.1967 executed by the same testator, Gopala Pillai who died on 26.11.1982. It is by virtue of the respective Wills that parties claimed title and possession over the suit property. Plaintiff in O.S. No.282 of 1992 denied the execution of Ext.A6, Will. He also denied testamentary capacity of Gopala Pillai while in O.S. No.600 of 1992 plaintiff claimed that Ext.A6, Will is the last Will and testament of the testator, Gopala Pillai. Courts R.S.A. Nos.673 & 675 of 2009 -: 2 :- below found in favour of due execution, attestation and registration of Ext.A6, Will No.28 of 1977 and accordingly granted relief in O.S. No.600 of 1992 while O.S.No.282 of 1992 ended in dismissal. Common judgment and decrees were confirmed by the first appellate court in the appeals above stated. 2. Substantial question of law raised in these appeals is whether the Scribe could be an attesting witness in the Will. Learned Senior Counsel for appellants placing reliance on the decision of the Apex Court in N. Kamalam v. Ayyasamy (2001) 7 SCC 503) contended that in the facts and circumstances of the case Scribe could not have been an attesting witness and thus requirement of Section 68 of the Indian Evidence Act (for short,”the Act”) is not complied with so far as Ext.A6, Will is concerned. Therefore Ext.A6, Will could not have been upheld by the courts below and hence consequential dismissal of O.S.No.282 of 1992 and grant of relief in O.S. No.600 of 1992 cannot be sustained. 3. To be a substantial question of law, the question of law raised must be debatable, not previously settled by law or a binding precedent or must have a material bearing on the decision of the case. In Mathew Oommen v. Suseela Mathew (2006 (1) KLT 626) the Supreme Court has held that there is no requirement in R.S.A. Nos.673 & 675 of 2009 -: 3 :- law that a Scribe cannot be an attesting witness and that what is required for attestation is an intention to attest. In that case the Scribe on the evidence on record was found to be an attesting witness. Therefore law does not stand against a Scribe of the document being an attesting witness. Question of law in that regard has been settled by the Supreme Court in unmistakable terms in the above decision. 4. So far as these cases are concerned, disputed Will is Ext.A6 which is registered as document No.28 of 1977. Executant, Gopala Pillai died admittedly on 26.11.1982, i.e. almost five years after the alleged execution, attestation and registration of Ext.A6, Will. P.W.2 is the Scribe and claimed to be an attesting witness as well. He has given evidence about execution and attestation of Ext.A6, Will. He has stated that it was Gopala Pillai who gave instructions to him for preparing the Will and that after it was prepared it was read over to Gopala Pillai. Thereafter Gopala Pillai subscribed his signature in the Will. P.W2 also stated that himself and the first attesting witness, Karunakaran signed the document as attesting witnesses. 5. So far as first attesting witness is concerned, evidence of P.W.2 is that the said person is lying paralysed. True, he has not been examined on commission but requirements of Sec.68 of the Act is only that at least one of the attesting witnesses shall be examined and that requirement has been fulfilled in this case. So far as testamentary R.S.A. Nos.673 & 675 of 2009 -: 4 :- capacity of Gopala Pillai to execute the document (Ext.A6) is concerned evidence is given by P.Ws.1 and 2. Fact remained that Gopala Pillai died only five years after the execution, attestation and registration of Ext.A6, Will. Exhibit A1 is a document executed by late Gopala Pillai in favour of a Co-operative Society much after Ext.A6, Will. Courts below found from the evidence that Gopala Pillai was in sound disposing state of mind at the time the document (Ext.A6) was executed. Fact of execution was also found in favour of respondents based on the evidence. 6. Then the question is whether P.W2 had actually signed Ext.A6, Will as an attesting witness. In the body of Will (Ext.A6) towards the concluding portion it is stated by the executant that he has signed in the presence of witnesses (who include P.W.2) and that witnesses have signed in his presence. Just below that, as “witness”, first attesting witness (Karunakaran) and P.W2 have signed. Learned counsel for appellants contended that mere statement in the body of Will that executant has signed the document in the presence of witnesses and vice versa is not sufficient. Counsel placed reliance on the decision in N. Kamalam's case referred supra. Learned counsel also referred me to paragraphs 25 and 26 of the said judgment. There what is stated is on the facts of the case whether a Scribe could or could not be an attesting witness. In this case evidence on R.S.A. Nos.673 & 675 of 2009 -: 5 :- record shows and it is specifically stated in Ext.A6 also that testator has signed in the presence of witnesses including P.W2, Scribe and that witnesses (including P.W.2) have signed in the presence of testator. Evidence of P.W.2 that he signed Ext.A6 as witness and Scribe was accepted by the courts below. Courts below found that evidence of P.W2 satisfied the requirement of Sec.68 of the Act. Courts below found that Ext.A6 is the last Will and testament of Shri Gopala Pillai. Dismissal of O.S. No.282 of 1992 and decree in O.S. No.600 of 1992 are the consequence of that finding. Those are findings of fact which the courts below concurrently found in favour of respondents. On going through the judgments under challenge and on hearing counsel I am not satisfied that any substantial question of law having a material bearing on the decision is involved in these cases. Second appeals are without any merit and are liable to be dismissed. Second appeals are dismissed. THOMAS P.JOSEPH, JUDGE. vsv