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2024 DIGILAW 1358 (KER)

Rathnamma v. Omana

2024-10-22

M.A.ABDUL HAKHIM

body2024
JUDGMENT : M.A. Abdul Hakhim, J. Defendants 1 to 3 are the appellants in RSA 375 of 2021, and defendants 1 and 3 are the appellants in RSA 1292 of 2016. These appeals are filed against the Preliminary decree and final decree in the suit. RSA No. 1292/2016 is filed against the preliminary decree and RSA No. 375/2021 is filed against the final decree. 2. The suit was filed by the plaintiffs for partition of the plaint Schedule property having an extent of 5 cents of land belonging to one Sadanandhan who died on 24.12.2002. Plaintiffs are 4 in numbers. The 1st plaintiff is the wife, 2nd & 3rd plaintiffs are the children and the 4th plaintiff is the mother of said Sadanandhan. 3. As per the plaint allegations, after deserting the plaintiffs, Sadanandhan started residing with the 1st defendant and out of the relationship with 1st defendant, the 2nd and 3rd defendants were born. The plaintiffs claim is that the plaint schedule property is liable to be partitioned among the plaintiffs and the defendants 2 and 3 by alloting 1/6th share each. 4. The defendants opposed the suit for partition, contending, inter alia, that the plaint schedule property is not available for partition as Sadanandhan had executed Ext.B1 Will dated 11.12.2022 in favour of the second defendant with respect to the plaint schedule property. 5. The defendant examined DW2 as one of the Attesting witnesses to prove Ext.B1 Will. The Trial Court found that the evidence of DW2 is insufficient to prove Ext.B1 Will and decreed the suit as prayed for. The defendants 1 and 3 filed A.S No. 157/2009 before the First Appellate Court and the same was dismissed confirming the judgment and decree of the Trial Court. 6. I heard the learned counsel appearing for the appellants Sri. Hariharaputhran and learned counsel for the respondents 1 and 3 Sri. Paul K.Varghese. 7. The learned counsel for the appellants argued that execution of Ext.B1 will is sufficiently proved by the evidence of DW2. 6. I heard the learned counsel appearing for the appellants Sri. Hariharaputhran and learned counsel for the respondents 1 and 3 Sri. Paul K.Varghese. 7. The learned counsel for the appellants argued that execution of Ext.B1 will is sufficiently proved by the evidence of DW2. The DW2 has specifically deposed that the testator came to his residence with the Will and Sri.Vijayakumar, the other attesting witness and a Scribe; that after getting signature of DW2 and Sri.Vijayakumar the Will was taken to the office of the Notary advocate and after getting the signature of the Advocate, the same was entrusted to DW2.There are compelling circumstances to believe that Ext.B1 Will was executed in order to ensure the residence of the defendants 1 to 3 who have been with the testator for several years, which is admitted by the plaintiffs themselves. 8. On the other hand, the learned counsel for the respondents submitted that execution of Ext.B1 Will is not proved before the Trial Court as mandated under Section 63(c) of the Indian succession Act as DW2 did not give evidence that the testator subscribing his signature to Ext.B1 Will before him. Separate Written Statements filed by the defendants 1 and 2 would show that they claimed that the Will is in favour of the second defendant whereas the Ext.B1 would show that it is in favour of the defendants 1 to 3. The contradiction between the pleading and evidence also would create suspicion as to the execution of the Will. The defendants 1 and 2 are not excluded from inheritance and they also would get their due share as per the Trial Court judgment and Decree. 9. Sec. 68 of the Evidence Act mandates the examination of only one of the two attesting witnesses to prove the Will. It is the duty of the Propounder to examine one of the attesting Witnesses to prove the Will in the Court even if the Will is not denied by the other side. 10. Sec.63(c) of the Indian Succession Act mandates that the Will shall be attested by two or more witnesses has seen the testator sign or affix his mark on the Will. DW2 was examined to prove the execution of Will by the testator. But his evidence would show that he had not seen testator signing the Will in front of him. Sec.63(c) of the Indian Succession Act mandates that the Will shall be attested by two or more witnesses has seen the testator sign or affix his mark on the Will. DW2 was examined to prove the execution of Will by the testator. But his evidence would show that he had not seen testator signing the Will in front of him. The learned counsel for the appellant relied on the decision of the Hon’ble Supreme Court in Moturu Nalini Kanth v. Gainedi Kaliprasad 2023 SCC Online SC 1488 in which it is held that merely because the witnesses did not state that they signed the Will in the presence of the testator, it could not be held that there was no due attestation and it would depend upon the circumstances elicited in evidence as to whether the attesting witnesses signed in the presence of the testator. Learned Counsel argued that even the presence of the attesting witness at the time of execution of the Will is sufficient to prove the attestation when the Will is attested by the attesting witness. It is to be noted that in the very same decision, it is held that the mode and manner of proving the due execution of will would indisputably depend upon the facts and circumstances of each case, and it is for the propounder of the Will to remove suspicious circumstances. Moreover, the said decision does not say that the evidence of the attesting witness is to be relied on to prove the execution of the Will, even if he does not state that he has seen the testator signing the Will. It is a mandatory requirement under Section 63(c) of the Indian Succession Act that the attesting witness shall see that the testator sign or affix his mark to the Will. 11. The learned counsel for the appellant also relied on the decision of the Hon’ble Supreme Court in Ganesan (D) Through Lrs. V Kalanjiam and others AIR 2019 SC 5682 to substantiate the very same point. The said decision deals with the acknowledgment of Will followed by attestation as permitted in Section 63(c). In the said decision the Hon’ble Supreme Court held that there is no express prescription in the statute that testator must necessarily sign the Will in the presence of the attesting witnesses. The said decision deals with the acknowledgment of Will followed by attestation as permitted in Section 63(c). In the said decision the Hon’ble Supreme Court held that there is no express prescription in the statute that testator must necessarily sign the Will in the presence of the attesting witnesses. In the case on and there is case that testator came to DW2 with a Will signed by him. The evidence of DW 2 is that testator came to his house with the scribe and the other attesting witness and prepared the Will in his house. In such case DW2 as the attesting Witness must give evidence that he has seen the testator signing the Will. 12. In view of the aforesaid circumstances, the decisions cited by the learned counsel for the appellants is clearly distinguishable on facts. 13. That apart, as rightly contended by the counsel appearing for the contesting respondents, the pleadings available in this case on the part of the defendants is that the Will was executed in favour of the 2nd defendant. But, on perusal of Ext.B1 Will was executed in favour of the defendant 1 to 3 jointly and not in favour of the 2nd defendant. Even though the Trial Court rejected the contention on the strength of Ext.B1 Will, the 2nd defendant has not chosen to challenge the judgment or decree of Trial Court by filing before the 1st Appellate Court or before this Court. 14. The Trial Court and the Appellate Court have made categorical finding that Ext.B1 will is not proved by the evidence of DW2. There is no perversity in such finding. The counsel for the appellant made a prayer that the facts and circumstance warrant remand of the case to the Trial court in order to enable the defendants to examine the other attesting witnesses to prove Ext.B1 Will. I am unable to accept the said prayer. The appellants could have examined the other attesting witness when it is found that the evidence of DW2 is not sufficient to prove the Will. No explanation is given for non examination of the other attesting witness. Failure to adduce material evidence is not ground to remand the case in the absence of a reasonable explanation for adducing material evidence. The appellants could have examined the other attesting witness when it is found that the evidence of DW2 is not sufficient to prove the Will. No explanation is given for non examination of the other attesting witness. Failure to adduce material evidence is not ground to remand the case in the absence of a reasonable explanation for adducing material evidence. If the remand is allowed to enable the party to adduce further evidence, it would be permitting the party to fill up the lacuna in the evidence. If remanded, the cautious evidence adduced by the party to cover up the insufficient evidence would tilt the balance to the detriment of the opposite party. In view of the aforesaid facts and circumstance of the case, I do not find any ground or reason for interfering with the judgment and decree passed in RSA No. 1292/2016. 15. RSA Nos.375/2021 is filed against the final decree by which the plaint schedule property having an extent of 5 cents and house situated therein are physically partitioned by the Trial Court. The plaintiffs together are entitled to 4/6 share and the defendants 2 and 3 are entitled to get 2/6 share. The Trial Court valued the building situated in the plaint schedule property at Rs.9,86,717/- and directed the plaintiffs to pay 2/6 of such value amounting Rs.3,28,905/- to the defendants, since the entire buildings would come within the share of plaintiff. The advocate Commissioner has divided plaint schedule property into 6 plots and allotted plot no.1 and 2 together to defendants and plot no. 3,4,5 and 6 together to the plaintiffs. Considering the lie and nature of the plaint schedule property, I do not find any better partition of the plaint schedule property. The defendants have not seriously disputed the value of the building arrived at by the Trial Court. In that view of the matter, I do not find any error or illegality in the final decree. Accordingly, the appeals are dismissed.