Posted On by &filed under High Court, Kerala High Court.


Kerala High Court
P.T.Lawrence vs State Of Kerala Represented By on 6 August, 2010
       

  

  

 
 
  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.
   ------------------------------------------------
            L. A. A. No.1374 of 2009
   ------------------------------------------------
      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/-


Leave a Reply

Your email address will not be published. Required fields are marked *

* Copy This Password *

* Type Or Paste Password Here *

93 queries in 0.150 seconds.