IN THE HIGH COURT OF KERALA AT ERNAKULAM
LA.App..No. 1374 of 2009()
1. P.T.LAWRENCE, S/O. LATE TOM LAWRENCE
... Petitioner
Vs
1. STATE OF KERALA REPRESENTED BY
... Respondent
2. TREESA DEVASSY AGED 67 YEARS
3. MALCOM LAWRENCE, S/O. LAWRENCE
4. ELIZABETH LAWRENCE, AGE 67 YEARS
For Petitioner :SRI.SHIVSHANKAR RAO
For Respondent :SRI.THOMAS T.VARGHESE
The Hon'ble MR. Justice PIUS C.KURIAKOSE
The Hon'ble MR. Justice C.K.ABDUL REHIM
Dated :06/08/2010
O R D E R
PIUS C. KURIAKOSE &
C. K. ABDUL REHIM, JJ.
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L. A. A. No.1374 of 2009
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Dated this the 6th day of August, 2010
JUDGMENT
Pius C. Kuriakose, J
Under challenge in this appeal is the
common order passed by the learned Subordinate
Judge, Kochi in two cheque applications
C.A.42/06-07 and C.A.49/06-07 filed respectively
by the second respondent and the appellant
herein. The appellant herein laid claim for the full
amount under deposit (which comes to
Rs.56,089/- which is 1/3 of Rs.1,68,268/-)
towards the account of late Tom Felicitas. The
appellant claimed on the basis of Ext.A1 Will that
he being the legatee of late Felicitas, is entitled
L. A. A. No.1374 of 2009 -2-
for the amount. Even though evidence was
adduced to prove the due execution of the Will
with perfect testamentary capacity and its due
registration in accordance with the law relating to
registration, the learned Subordinate Judge has
found under the common order that the due
execution and registration of Ext.A1 is not
established by the appellant. One of the reasons
highlighted by the learned Subordinate Judge is
the non-examination of the Registrar. Though
Mr.R.Sivasankar Rao, the learned counsel for the
appellant argued that the court below was not
justified in insisting on examination of the
Registrar as the very registration itself arouses a
presumption in terms of Section 114 (e) of the
Indian Evidence Act, we feel that in the present
L. A. A. No.1374 of 2009 -3-
case where Ext.A1 document it is shrouded with
some suspicion, the evidence on the side of the
appellant who is the propounder of the Will will
not be complete unless the Registrar is also
examined. Mr.Rao submitted that if opportunity is
given there will not be difficulty for examining the
Registrar.
2. In view of the above submission, we set
aside the common order which is impugned in this
appeal and remand the two cheque applications
back to the learned Subordinate Judge. The
learned Subordinate Judge will give opportunity to
the appellant to adduce further evidence including
the examination of the Registrar who facilitated
the Registration of Ext.A1 will. The further enquiry
will be completed and revised orders will be
L. A. A. No.1374 of 2009 -4-
passed by the learned Subordinate Judge at the
earliest and at any rate within two months of
parties entering appearance before the court
below. The parties will enter appearance before
the court below on 05/09/10. We make it clear
that if parties apply for cheque for disbursement
of the amounts which are indisputably due to
them those cheque applications will be favourably
considered.
PIUS C. KURIAKOSE
JUDGE
C. K. ABDUL REHIM
JUDGE
kns/-
