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2025 DIGILAW 152 (KER)

Shylaja v. Nishad. K

2025-01-31

M.A.ABDUL HAKHIM

body2025
JUDGMENT : M.A. Abdul Hakhim, J. 1. The plaintiff in a suit for partition is the appellant. The suit was filed for partition of the property belonging to one Karuvarakandy Raghavan. The plaintiff and the 3rd defendant are the children of Raghavan, born to his first wife, Sreemathi. 1st defendant is his second wife, and the 2nd defendant is the son born to him through the 1st defendant. During the pendency of the suit, the 1st defendant also died. The plaintiff sought partition of the B schedule property by allotment of 1/4th share to her. 2. The defendants 1 and 3 remained ex parte. The 2nd defendant is recorded as the legal heir of the deceased 1st defendant. 3. The 2nd defendant filed Written Statement admitting the original ownership of plaint B schedule property with Raghavan and the relationship of the parties and resisting the suit prayers contending that Raghavan had executed Ext.B1 Will with respect to Item No.1 and 3 in favour of the defendants 1 and 2. 4. Thereafter, the plaintiff amended the Plaint incorporating necessary contentions disputing the Ext.B1 Will and denying its execution. According to the plaintiff, Raghavan had not executed any such will, and it was a fraudulently created one, and Raghavan was not in a sound disposing capacity at the time of execution of the will. 5. The plaintiff was examined as PW1 and Exts. A1 to A8 were marked. On the side of the defendants DWs 1 & 2 and Exts.B1 to B7 were marked. DW1 is the attesting witness of Ext.B1 Will and DW2 is the 2nd defendant. 6. Initially, the Trial Court decreed the suit, finding that Ext. B1 is a valid Will executed by Raghavan and passed a Preliminary Decree for partition in accordance with Ext.B1 Will. The plaintiff filed A.S.No.158/2013 before the First Appellate Court, and the First Appellate Court set aside the Preliminary Decree passed by the Trial Court and remanded the matter for fresh consideration in accordance with the observations made therein. Thereafter, DW 1 was recalled and examined again. The Trial Court again decreed the suit passing Preliminary Decree for partition in accordance with Ext.B1 will finding that Ext.B1 Will is validly executed by Raghavan. The plaintiff filed an Appeal before the First Appellate Court, and the First Appellate Court dismissed the Appeal, confirming the judgment and decree passed by the Trial Court. 7. The Trial Court again decreed the suit passing Preliminary Decree for partition in accordance with Ext.B1 will finding that Ext.B1 Will is validly executed by Raghavan. The plaintiff filed an Appeal before the First Appellate Court, and the First Appellate Court dismissed the Appeal, confirming the judgment and decree passed by the Trial Court. 7. I heard the learned Counsel for the appellant, Sri.M Krishnakumar. 8. The learned Counsel for the appellant contended that Ext.B1 Will was not proved in accordance with the provisions of S.63 of the Indian Succession Act and Sections 67 and 68 of the Indian Evidence Act. Learned Counsel invited my attention to various paragraphs in the classic decision of the Hon’ble Supreme Court in H.Venkatachala Iyengar V. B.N.Thimmajamma AIR 1959 SC 443 to enlighten the degree of proof required. Learned Counsel further contended that in the first round, the First Appellate Court found that the evidence of DW2 could not be relied on, and hence, the judgment passed by the Trial court was set aside and remanded the matter back to the Trial court for fresh consideration, in accordance with the observations therein. The plaintiff had filed I. A No. 2001/2013 for sending Ext.B1 for comparison of the signature of DW1 for expert opinion. Though the Trial Court dismissed the said Application, the said Application was allowed by the First Appellate Court, and thereafter, the matter was remanded to the Trial Court. When I. A No. 2001/2013 was allowed by the Superior Court, the same could not be closed by the Trial Court on the submission of the counsel for the plaintiff. It is revealed from Ext.A8 that DW1 is a habitual witness in the Registrar's Office, and he has executed nearly 38 documents during the short period from 16.02.1994 to 02.03.1994. He deposed before the remand that he had executed Ext.B1 alone on the date of execution of Ext.B1. But Ext.A8 would reveal that he had executed several documents on that day. It is proven that DW1 is not a reliable and trustworthy witness. The learned Counsel concluded that the appeal requires admission as substantial questions of law are involved in the matter. 9. I considered the contentions of the learned counsel. 10. The contention of the learned counsel for the appellant is that the execution of the Will is not proved by the evidence of DW1. The learned Counsel concluded that the appeal requires admission as substantial questions of law are involved in the matter. 9. I considered the contentions of the learned counsel. 10. The contention of the learned counsel for the appellant is that the execution of the Will is not proved by the evidence of DW1. The contention is that the First Appellate Court found that the evidence of DW1 is not reliable and accordingly allowed I. A No. 2001/2013 to send Ext.B1 to the Handwriting Expert; that when the First Appellate Court has discarded the evidence of DW2 and has moved to the next stage for sending the disputed document to the Handwriting Expert, the Trial Court was not justified in relying on the evidence of DW2. The learned Counsel invited my attention to S.67 of the Indian Evidence Act and also the Commentary of the same in ‘Law of Evidence by Woodroffe and Amir Ali’. The learned Counsel contended that there are several modes for proving signature, which are stated in the said commentary in a sequence. Modes are to be undertaken by exhausting one after another. When the Court has reached at one mode, the Court cannot go back to the previous mode in the sequence. I am unable to accept the said argument of the learned Counsel. It is stated in the said Commentary that there are several modes for proving a signature. The first three are (1) By calling a person who signed or wrote a document. (2) By calling a person in whose presence the document was signed or written (3) By calling a Handwriting Expert. It could not be said that each of the modes can be adopted only after exhausting the previous one in the sequence. It does not say modes are to be adopted one by one in the sequence. The Commentary only says that there are several modes for proving the signature. It does not say that the modes are to be adopted in the very same sequence. It is the discretion of the Court to adopt any of the modes for proof of signature. Court can even adopt several modes together or one by one in any sequence. The basis for the sequence of different modes is not there in the Commentary. The Commentary is only an opinion of the author and is not binding on the Courts. Court can even adopt several modes together or one by one in any sequence. The basis for the sequence of different modes is not there in the Commentary. The Commentary is only an opinion of the author and is not binding on the Courts. Of course, the opinion of the jurists always help the Courts to understand the law correctly and to arrive at the right conclusion. 11. In the case on hand, DW2 was examined before the remand, and he deposed that he had signed Ext.B1 alone on that day. In the first round, when the First Appellate Court found that the said evidence was not correct in view of Ext.B8 produced before it, the matter was remanded to the Trial Court for enabling the plaintiff to cross-examine DW2 with reference to Ext.B8. Thereafter, DW1 was again examined before the Trial Court, and DW1 clarified that what he intended was that he had signed only one Will as a witness on that day. The First Appellate Court has not found that the evidence of DW2 is unreliable. If that be so, there was no need for remanding the matter back to the Trial Court for further examination of DW1. The remand of the matter back to the Trial Court is to enable further cross-examination of DW1 and, thereafter, to decide the matter afresh. It clearly permits the Trial Court to reconsider the evidence of DW1 afresh after further examination and to come to a conclusion. It does not interdict the Trial Court in any way from relying on the evidence of DW1 in the matter of proof of Ext.B1. The Trial Court is perfectly justified in reconsidering the evidence of DW1. 12. The contention of the learned counsel that DW1 is a habitual witness and, hence, his evidence would not be reliable. True, from Ext.A8, it is seen that he has executed nearly 38 documents in a short span of time from 16.02.1994 to 22.03.1994. It would indicate that he is a habitual witness before the Registrar's Office. But as far as a Will is concerned, the question is whether the Will is signed by two attesting witnesses in accordance with the provision under Section 63 of the Indian Succession Act. The nature and character of the Attesting Witness are not relevant, or material for considering the attesting witness has signed the Will. But as far as a Will is concerned, the question is whether the Will is signed by two attesting witnesses in accordance with the provision under Section 63 of the Indian Succession Act. The nature and character of the Attesting Witness are not relevant, or material for considering the attesting witness has signed the Will. Disqualification for the Attesting witness could not be considered with reference to the nature, character, and conduct of the attesting witness. Hence, the contention of the Counsel that the evidence of DW1 could not be relied on is unsustainable. Learned counsel could not point out any other perversity in the matter of appreciation of evidence of DW1 13. It is true that the First Appellate Court had allowed I. A No. 2001/2013 for sending the signature of DW1 in Ext.B1 to the Handwriting Expert. It is seen from the impugned judgment of the Trial Court that after remand, Ext.B1 was sent to the Handwriting Expert for his opinion. The Handwriting Expert returned the Requisition requiring further additional materials for completing the comparison. Thereafter, the plaintiff did not take further steps. On 19.06.2019, the learned Counsel for the plaintiff endorsed on the Application that “the signature of the period 1994 is not available. The requisition of the Director FSL (No.B1-2027/2017/RFS/KNR cannot be complied with. Hence the above I.A is not pressed”. The contention of the learned Counsel for the appellant is that When the Superior Court allowed the Application, the same could not be disallowed or closed by an Inferior Court. Here, in compliance with the Remand order, the Trial Court sent Ext.B1 to the Expert. When further details were sought by the Expert, the plaintiff did not cooperate to produce the same. The materials required were not provided to the Court. Ultimately, Counsel for the plaintiff endorsed that the plaintiff is not pressing the I.A. On getting a Communication from the Expert requiring further details to proceed with the Application, the same will have to be submitted by the party who filed the Application. If the party is not cooperating with the Court by furnishing the details sought for, the Court has no other option but to dismiss the Application. If the party is not cooperating with the Court by furnishing the details sought for, the Court has no other option but to dismiss the Application. In view of the subsequent developments, after the return of the Requisition from the Court by the Expert, the Trial Court is perfectly justified to close the Application when the plaintiff did not cooperate to produce the additional documents required and endorsed that the Application is not pressed. Further, the Application was not pressed by the plaintiff herself, and it is the plaintiff herself who is blaming the Court in the Appeal. After withdrawing an application by the plaintiff before the Trial Court, the plaintiff cannot file an appeal complaining that the Court illegally closed the said Application. 14. I hold that the finding of the Trial Court, as well as the First Appellate Court, that Ext.B1 is proved in accordance with Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act is fully justified. 15. I do not find any grounds or reason to interfere with the judgment and decree passed by the Trial Court, which is confirmed by the First Appellate Court. No substantial question of law arises in the matter. Accordingly, the Regular Second Appeal is dismissed.