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2003 DIGILAW 27 (KER)

Anthoniammal v. Appavu

2003-01-14

K.A.ABDUL GAFOOR, K.THANKAPPAN

body2003
JUDGMENT K.A. Abdul Gafoor, J. 1. Disposal of MFA.No.870/97 will resolve the dispute in CRP.672/1997. 2. As per the judgment impugned in MFA.870/97, the application of the appellant under Sec.213 of the Indian Succession Act for probate of a Will has been dismissed. Few facts are necessary to dispose of this appeal. 3. The appellant is the legatee of a Will executed by her father on 8.3.1958. Her father died on 1.12.1959. The parties belong to Vaniya Christian in Palakkad. According to her they are following Hindu law on succession. So the Will did not require a probate. So no steps in that regard had been taken. The appellant had been married away to a place in Tamilnadu and was permanently residing there. The property that she had got in terms of the Will. According to her, were being managed by her mother and brother. While so in the year 1997, the Taluk Land Board, Chittur served a notice on the appellant's brother on a suo motu proceedings, TLB S.M.No.211/1997 requiring him to surrender excess land in his possession in terms of the provisions contained in Act 1 of 1964. Knowing that as the properties stood bequeathed in favour of the appellant, she filed a claim petition contending that 10.03 acres of land covered by the suo motu proceedings before the Land Board really belonged to her and was in her possession and should have been exempted. This claim was put up based on the above mentioned Will. The Taluk Land Board accepted the Will, though only a copy was produced before it. No original of the Will was produced before the Taluk Land Board. Aggrieved by the Order, the State took up the matter in revision before this Court as CRP.561/1983. This court set aside the order of the Taluk Land Board on the ground that the parties being Christians, the Will could have been acted upon and relied on, only if it had been probated. By a judgment of this Court, the appellant was directed to get the Will probated, if she wanted to rely on it. This Court thus allowed the CRP filed by the State, on 22.2.1991. 4. In the meantime, during the pendency of the proceedings before the Taluk Land Board, the appellant filed O.S.13/82 before the Munsiff Court, Chittur seeking-injunction against her own brother, the first respondent herein. This Court thus allowed the CRP filed by the State, on 22.2.1991. 4. In the meantime, during the pendency of the proceedings before the Taluk Land Board, the appellant filed O.S.13/82 before the Munsiff Court, Chittur seeking-injunction against her own brother, the first respondent herein. The State has not been made a party in the said suit, it is conceded. The petitioner's brother remained ex parte in the suit and the suit was decreed,ex parte on 20.2.1982. It is to be remembered that the suit was filed only on 10.1.1982. It is stated that the original of the Will was produced in the said suit to prove the title of the appellant to the property forming subject matter of the said suit. Within a week it seems the appellant had obtained a certified copy of the alleged Will to be produced before the Taluk Land Board which ultimately was acted upon by the Taluk Land Board as already mentioned above. Thereafter nothing is stated about original of the Will. 5. After disposal of the revision petition directing appellant to obtain probate, of the Will as per judgment dated 22.2.1991 in CRP.No.561/1983, wherein only a period of six months had been granted to approach so, the petitioner filed an application under S.213 of the Indian Succession Act on 23.7.1991 a producing there with a certified copy of the Will, Ext.A7, which she had obtained : to be produced before the Taluk Land Board, in the year 1982. In this respect . the contention of the appellant is very pertinent to be noted, that the appellant obtained only the certified copy of the Will to be produced before the Taluk Land Board, but did not obtain the original of the Will returned inspite of the disposal of the suit on 20.2.1982. This aspect is very material with regard to the disposal of this MFA. 6. On 23.7.1991, when the application for probate has been preferred in the District Court, Palakkad, itself the appellant applied in Ext.A6 for return of the original of the Will from the Munsiff Court. That was after 9 and half years of the disposal of the suit. It is stated, astonishingly, that the Court had disposed-of the original records including the will and a communication in that regard was also produced before the District Court. That was after 9 and half years of the disposal of the suit. It is stated, astonishingly, that the Court had disposed-of the original records including the will and a communication in that regard was also produced before the District Court. It is submitted that along with the application for probate an affidavit from one among the attestant witness alive at that time was also produced. There was delay in filing counter by none other ; than her own brother. The Government filed obviously a belated counter affidavit. By that time, the available attesting witness as well as the scribe expired. In that circumstances, it is contended that, the Will on the strength of Ext.A7 certified copy ought to have been taken as duly proved as duly executed, the appellant contends. 7. It is imperative in terms of Sec.63 of the Indian Succession Act that a Will has to be proved. Manner of proof of Will is also mentioned in S.68 and 69 of the Indian Evidence Act. In terms of Sec.68, it is mandatory that Will has to be proved by examining at least one among the attesting witnesses. In the absence of any of the attesting witnesses a person seeking probate of Will is enabled to prove a Will by examining another who is familiar with the handwriting and signature of the testator. No independent evidence was let in that regard except the interest testimony of PWl who is none other that the appellant herself. More over to prove the handwriting of the testator, the original was also not available. In such circumstances if the Court below comes to a finding that the Will has not been duly proved as statutorily required in terms of Sec.68 or 69 of the Indian Evidence Act, such finding cannot be stated to be faulty to invite interference in an appeal. 8. In this regard, the contention of the appellant that she could not produce the original of the Will because of the fault of the Court in destroying the document has to be considered. As already mentioned above, the original of the Will is stated to be produced in O.S. 13/82 filed by the appellant against her own brother. That suit had been disposed of ex parte, on 20.2.82. As already mentioned above, the original of the Will is stated to be produced in O.S. 13/82 filed by the appellant against her own brother. That suit had been disposed of ex parte, on 20.2.82. Before the Taluk land Board, when the appellant filed a claim petition, she had produced on 10.2.1982, a certified copy of the Will obtained from the Munsiff Court, Chittur. The appellant was conscious enough to get that copy back from the Taluk Land Board immediately after the disposal of the case by the Taluk Land Board, as is seen from Ext.A7. It was that appellant who did not move her little finger to obtain the original of the Will which is more a precious document, to prove her title, over the property, until 20.3.1997 a period more than 9 and a half years. The appellant cannot cash out this gross lapse on her part. So she cannot harp much on the alleged distinction of the original Will. Therefore it has to be taken that the Will has never been proved as required by law. In this regard the conduct of respondent No. 1. who is none other than the brother of the appellant is also relevant. Apart from filing a vakalath he did not contest or file pleadings with regard to the events or with regard to the nature of the suit filed in the year 1982 making him a defendant and obtaining an ex parte order of injunction. In the court below he has been present on all days through out watching the proceedings of the court. This is evident from the judgment impugned. That itself was indicative that the entire play on different levels was collusive. Thus it is a clear case to defeat the provisions of Kerala Land Reforms Act, 1963 providing for surrender of excess land by appellant's own brother. 9. It is further contended that the parties being Vaniya Christian and following Hindu Law of succession are not required to probate the Will. That cannot now be heard, even if the law is so, in the light of the judgment in CRP.561/83, which has become final and conclusive, wherein it has been held that so far as parties are concerned probate is required before the Will in question has to be acted upon by the Taluk Land Board. 10. That cannot now be heard, even if the law is so, in the light of the judgment in CRP.561/83, which has become final and conclusive, wherein it has been held that so far as parties are concerned probate is required before the Will in question has to be acted upon by the Taluk Land Board. 10. It was contended based on the decisions reported in P. Subrahmanian & Ors. v. Ramachandran & Ors. ( AIR 1996 Ker. 64 ) and Venkita Rama Raju v. Narasa Raju (1966 Andhra Weekly Reporter 134) that, the Will could be proved in the absence of original on the strength of authenticated copy. The case dealt with by the Andhra Pradesh High Court was one wherein the signatures of the testator and attestor have been proved. It is in that context the said court held that the secondary evidence can be acted upon. The decision of this Court mentioned above does not fit into the fact frame of this case. Ofcourse, when the genuineness of the Will is in question it is up to the incumbent concerned who questioned the genuineness to prove the shrouding circumstances surrounding the Will. But it has to be remembered that when one is seeking probate, it is the primary burden on him to prove that the Will has been duly executed; before the genuineness is being examined. That burden has not been discharged by the appellant. 11. Thus on any count there is no reason to interfere with the impugned judgment, MFA is dismissed. 12. As already mentioned above, this Court had in the judgment in C.R.P.561/ 83 to which the appellant was a party had held that the Will cannot be acted upon without it being probated. The application for probate has been dismissed and such dismissal has been confirmed hereby. When the Will is not probated, necessarily the order of the Land Board dismissing the claim petition, impugned in CRP.672/97, cannot be stated to be faulty. CRP also therefore has to be dismissed. No costs.