IN THE HIGH COURT OF KERALA AT ERNAKULAM
AS.No. 173 of 2001(E)
1. PUSHPAVATHY
... Petitioner
Vs
1. ANIRUDHAN
... Respondent
For Petitioner :SRI.R.S.KALKURA
For Respondent :SRI.ABRAHAM MATHEW (VETTOOR)
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :25/06/2010
O R D E R
M.N. KRISHNAN, J.
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A.S.NO.173 OF 2001
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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
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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
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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
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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
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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
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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
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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
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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)
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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
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M.N. KRISHNAN, J.
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A.S.NO.173 OF 2001
………………………………………
25th day of June, 2010.
J U D G M E N T