IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 29TH JANUARY 2009 / 9TH MAGHA 1930 AS.No. 610 of 1996(A) ------------------------------- OS.200/1992 of ADDL.SUB COURT, KOCHI .................... APPELLANT(S): DEFENDANT ----------------------- 1. A.D.SUDHAKARAN, S/O.DAMODARAN, AGED 48 YEARS, ATHIMALIPARAMBIL HOUSE, P.D.ROAD, PALLURUTHY, COCHIN 6. 2. GOURI, W/O. LATE DAMODARAN, AGED 56 YEARS, RESIDING AT DO. DO. BY ADV. SRI.P.GEORGE WILLIAM RESPONDENT(S): PLAINTIFF ------------------------ A.D.BHANUMATI, W/O. P.M.RAGHUVARAN, AGED 42 YEARS, RESIDING AT PARATHAMPARAMBIL, P.D.ROAD, PALLURUTHY COCHIN 6. ADV. MR.A.ANILKUMAR FOR R1 SMT.RANJINI THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 29/01/2009 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J ----------------------- A.S.No. 610 OF 1996 --------------------------------- Dated this the 29th day of January, 2009 JUDGMENT This is an appeal preferred against the judgment and decree in O.S. 200/92 of the Additional subordinate Judge’s Court, Kochi. The plaintiff and the 1st defendant are the children of one Sri. Damodaran and the 2nd defendant is the wife of Damodaran. Admittedly the property belonged to Sri. Damodaran. It is the case of the plaintiff that on the death of Damodaran the property had devolved upon the plaintiff and the defendants and therefore she is entitled to one such share in the property. Hence the suit for partition. On the other hand the defendants would contend that though the property belonged to Damodaran by virtue of a will executed in the year 1979 which is marked as Ext. B1, on the death of Damodaran, the property has to devolve upon the son of the 1st defendant and there is a recital in the will whereby an amount of Rs. 2,000/- is to be paid to the plaintiff. The defendants would further contend that by virtue of Ext. B2 document, the amount stipulated under the will had been paid A.S. 610/1996 -2- and therefore the plaintiff does not have any interest or title over the property. Therefore the suit is liable to be dismissed. 2. In the lower court Exts. A1, A2 and B1 to B7 were marked. PW1 and DWs 1 to 3 were examined. The trial court on analysis of the materials held that Ext. B1 is not properly proved and not genuine and also rejected the contention of the defendants that by virtue of Exts. B1 and B2 right has been lost. 3. Heard the learned counsel for the appellants as well as the respondent. The whole question revolves upon the finding whether the will alleged to be executed by Mr. Damodaran is proved and whether Ext. B2 document takes away right if any in the property. I have perused Ext. B1 will. It is executed on 5th October 1979. It is clearly stated that the property has to devolve upon one Sugathan who is the son of 1st defendant and an amount of Rs. 2,000/- has to be paid to the daughter namely the plaintiff. The document is scribed by one Somasundaran and attested by two witnesses Abdul Majeed and Sebastian Joseph. It is registered as document No. 81/1979 of the Sub Registrar’s Office, Kochi. It is a well settled principle that it is the burden of A.S. 610/1996 -3- the propounder to prove the execution of the will. The supreme Court in the decision reported in H. Venkatachala Iyengar v. B.N. Thimmajamma and others [AIR 1959 SC 443] had given the guidelines with respect to the analysis and appreciation of evidence in relation to the proof of a will. The Supreme Court held that: “Sections 59 and 63 of the Indian Succession Act are relevant. Thus the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. It would prima facie true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by Section 63 of the Indian succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty”. The Supreme Court also cautioned that while analyzing the matter, the court has to remember that it is sitting in the arm chair of the testator who is not available to speak about the correctness or genuineness of the same. A.S. 610/1996 -4- 4. So far as the proof of will is concerned, the learned Judge of this court in the decision reported in Ammini Amma v. Govindan Nair [2003 (2) KLT CASE NO. 131] held that : “Since the plaintiff disputes the genuineness of Ext. B4, the burden is on the defendant to substantiate the same. Merely because the will is a registered one that itself is not sufficient to remove the suspicion. One of the suspicious circumstances may be with regard to the attestation of the will. In order to prove that a will was properly executed and was intended to be given effect to as such, it has to be proved, apart from other things, that the said document was attested by two or more witnesses in the manner provided under S. 63(c) of the Indian Succession Act. It is not necessary that both the attesting witnesses should be present at the same time, but the witnesses should say that he has signed the will in the presence of the testator or after obtaining an acknowledgement from the testator. S. 68 of the Evidence Act mandates that a document, which requires by law, to be attested shall not be used as evidence until one attesting witness atleast has been called for the purpose of proving its execution”. A.S. 610/1996 -5- A perusal of the said decision would reveal that it is not mandatory that both the attesting witnesses should sign the document at the same time but it is sufficient if the witnesses speak with respect to affixing of signature by the testator and also at the attesting witnesses. A perusal of Section 63 of the Indian Succession Act would show that the will shall be attested by two or more witnesses, each of them has seen the testator sign or affix his mark to the will or has seen some other person signing the will in the presence and by direction of the testator etc. etc. Or in other words it has to be stated that in order to prove the due attestation of the will, the propounder of the Will has to prove that the two witnesses saw the testator signing the will and that they themselves signed the will in the presence of the testator. Unless the attestation is proved, the mere registration of the will is not sufficient to prove the will. Now let me analyse whether the attestation has been properly proved? The evidence to prove the attestation of the will is in the form of the oral evidence of DW2 who is an attesting witness to Ext. B1 document. In the chief examination he would depose that he had A.S. 610/1996 -6- seen the testator Joseph and the scribe putting the signature and that others had seen him affixing the signature. If this is not controverted, certainly this would be sufficient evidence to prove the due attestation of the will. But unfortunately it is not so from the cross examination of the witnesses. In the cross examination he would depose that he had not gone to the Registrar's Office at 2 p.m on the relevant date. Initially he went to the office of the scribe and from there himself and Damodaran and others went to the office of the Registrar. He would assert that he had not signed the document from the office of the scribe. Later he would say that himself and Damodaran had signed from the Varandah of the Sub Registrar's Office. He makes it clear that he alone and Damaodaran signed from the Varandah of the Registrar's Office. He further implies by saying “ 5. Then comes to the question of attestation of the will by Mr. Joseph. He would say that Joseph had signed the document from the office of the Registrar and that he had only put one A.S. 610/1996 -7- signature before the Registrar. A perusal of Ext. B1 would reveal that the said Joseph is an identifying witness to the will and it must be that signature that has been put before the said Registrar. Unfortunately there is no evidence forthcoming to prove the signing of the will as an attester by Joseph. It has to be stated that it is not necessary that both the attesting witnesses should sign simultaneously in front of the testator. It is sufficient that one signs and thereafter the other also signs or even if it is signed by the testator initially there is an acknowledgment of his signature by the testator when the 2nd attesting witness can sign the document and it will be valid attestation under Section 63 of the Indian Succession Act. But to the disappointment of the defendants in this case it has to be stated that absolutely no body speaks about the acknowledgment of signature by Damodaran or Joseph or that Joseph has signed in the presence of Damodaran or vice versa. So the attestation as contemplated under Section 63 of the Indian Succession Act is not proved. When attestation is not proved that document cannot be made use of. Therefore I agree with the learned Subordinate Judge in A.S. 610/1996 -8- arriving at a decision regarding the rejection of the claim under Ext. B1. 6. The next question is regarding Ext. B2. Ext. B2 is an unregistered document and having the nomenclature of a surrender deed. The property involved in the suit is worth more than Rs. 100/-. It cannot be taken as a release deed with respect to the rights. Further it has to be stated that there cannot be any right for this plaintiff during the life time of her father for the reason that her right comes only after his death. The plaintiff has admitted that she had put her signature in the document but it does not relate to the right in the property. Therefore the trial court after analysing the evidence held that the said document also will not come to the rescue of the defendants. I do not find any error committed by the court below and therefore that finding stands confirmed. 7. Lastly on the question of the contention that the house and the shop building has been constructed by the 1st defendant with his funds. Now at a belated stage along with the appeal an application for amendment of written statement is filed to A.S. 610/1996 -9- incorporate such a plea, I feel this plea cannot be entertained in order to fill the lacuna that has come out on account of the finding of the court below. Further if allowed the court will put the winning party into a loosing position. This was a pleading which was available to the defendants from inception of the suit itself and it was a very important pleading which they should have taken in the original written statement itself. Without doing so and after a finding by the court below that there is no such pleading, the attempt to rectify that mistake cannot be allowed to be entertained at this stage of the appeal that too long after 14 -15 years. Therefore the application for amendment stands dismissed. 8. Further the documents now sought to be produced is under Order 41 Rule 27 and according to that rule if a person is incapable of producing a document in spite of due diligence or that such document came into existence there after or for any other sufficient reason the document can be received. It has to be remembered the whole documents were available with the defendants at the time of the institution of the suit itself and it A.S. 610/1996 -10- should have been produced atleast at the trial stage. Producing documents to fill up the lacuna cannot be entertained especially in the light of the amendment of the Civil Procedure Code which does not entertain protraction of litigation. Therefore that also is not allowed. But it has to be remembered that the 1st defendant is the son and he was residing through out with his father and he is residing in this house with his family where as plaintiff is living with her husband. The house can be allotted to the defendants. I make it clear that it is not on the basis of any reservation but as equity and the value of the house also be arrived at and share of the plaintiff in that house be given. With these modifications the appeal is disposed of accordingly. M.N. KRISHNAN,JUDGE vkm