Kerala High Court
Savithri vs Ponnappan on 7 July, 2014
Author: P.Bhavadasan
Bench: P.Bhavadasan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.BHAVADASAN
MONDAY,THE 7TH DAY OF JULY 2014/16TH ASHADHA, 1936
RSA.No. 92 of 2012 ()
----------------------
AS 19/2009 of DISTRICT COURT, ALAPPUZHA
IN OS 270/2000 of ADDL.MUNSIFF COURT, ALAPPUZHA
--------
APPELLANT/RESPONDENT/PLAINTIFF:
-------------------------------------------------------
SAVITHRI, D/O.JANAKIAMMA,
AGED 62 YEARS, ETTUKANDATHIL,
KOMALAPURAM VILLAGE, ALAPPUZHA.
BY ADV. SRI.B.PRAMOD
RESPONDENTS/APPELLANTS/DEFENDANTS :
----------------------------------------------------------------
1. PONNAPPAN, AGED 53 YEARS,
PANNISSERIL HOUSE, KOMALAPURAM VILLAGE,
ALAPPUZHA.
2. REGHUPATHY,
W/O.PONNAPPAN, AGED 50 YEARS, PANNISSERIL HOUSE,
KOMALAPURAM VILLAGE, ALAPPUZHA.
R1 & R2 BY SRI.N.DHARMADAN SENIOR ADVOCATE
BY ADV. SMT.D.P.RENU
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD
ON 07-07-2014, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
BP
P.BHAVADASAN, J.
- - - - - - - - - - - - - - - - - - - - - - - -
R.S.A. No. 92 of 2012
- - - - - - - - - - - - - - - - - - - - - - - -
Dated this the 07th day of July, 2014
J U D G M E N T
The plaintiff in O.S.No.270 of 2000, who was successful before the trial court but was non suited by the lower appellate court, is the appellant.
2. The facts absolutely necessary for the purpose of disposal of this appeal are as follows:
The plaint schedule property, according to the plaintiff, belonged to her father and it devolved on her as per Ext.A1 Will dated 11.01.1120 M.E. Ever since then, she has been in absolute possession and enjoyment of the property. According to the plaintiff, the defendants, after alienating the properties which came into their possession, trespassed in October 1997 into the southern portion of the plaint schedule property and put up a shed therein. In spite of demand, they did not vacate. Though the plaintiff approached the Police, they did not render any help and so R.S.A. No. 92 of 2012 -2- constrained, she laid the suit. The relief sought for was one for declaration of title and mandatory injunction.
3. The suit was resisted by the defendants by pointing out that the plaint item No.1 did not belong to the plaintiff nor was she in possession of the same. They disputed the genuineness of the Will and contended that the plaintiff has not derived any right or title over the plaint schedule property. It was contended that the defendants and their predecessors-in-interest have been residing in the property for a long time. They claimed to cultivate the suit property. They denied the act of trespass and liability to remove the shed from the suit property. It was also contended by defendants that plaint schedule property is a puramboke land and the plaintiff has no manner of right over the same. Per contra, they also contended that by long uninterrupted and peaceful possession, they have perfected their title to the property by adverse possession and limitation.
R.S.A. No. 92 of 2012 -3-
4. On the above pleadings, issues were raised. The evidence consists of the testimony of PWs 1 to 6 and documents marked as Exts. A1 to A3 from the side of the plaintiff. Defendants had DWs 1 to 3 examined. Exts. C1 to C5 are the Commissioners report, plan and sketch. Ext. X1 is the third party exhibit.
5. Strangely enough, the trial court by observing that the examination of the Sub Registrar is sufficient to prove the genuineness of Will, granted a decree in favour of the plaintiff.
6. The aggrieved defendants carried the matter in appeal as A.S.No. 19 of 2009. Their main contention was that the Will deed by which the plaintiff is alleged to have obtained from her father did not trace title to any previous document, or in other words, it is not discernible from the Will as to how the father of the plaintiff obtained the property.
R.S.A. No. 92 of 2012 -4-
7. The lower appellate court found that as rightly pointed out by the appellants before it, there was no recital in the Will as to how the father of the plaintiff obtained the property and in the light of the specific contention taken by the defendants that it was a puramboke land, there was obligation on the part of the plaintiff to prove the derivation of title. Having failed to do so, the lower appellate court was of the view that the plaintiff should fail in her endeavour. Accordingly, the appeal was allowed and the suit was dismissed.
8. At the time of admission, the following substantial questions of law were formulated:
"i. Whether the lower appellate court was right in ignoring the admission of title made by the respondents which entitles the appellant to a decree of declaration of title which is personam in nature?
ii. Whether the lower appellate court was right in discarding the admission of title made by the respondents in the earlier judicial proceeding which ended in Ext.A3.? R.S.A. No. 92 of 2012 -5- vii. Whether the lower appellate court was right in not finding that the defendants are estopped from denying the title of the appellant?
iv Whether the lower appellate court was right in finding that the plaint schedule item No.1 property is a puramboke land relying on a recital in a document executed between strangers?
v. Whether the lower appellate court was right in finding that the plaint schedule item No.1 property is a puramboke land ignoring the fact that suo motu proceedings u/s. 72 C of the Kerala Land Reforms At had been initiated in respect of a portion of the said property?
vi. Whether the lower appellate court was right in finding that the plaint schedule item No.1 property is a puramboke land ignoring the fact that basic tax is being paid in respect of the said property?
vii. Whether the lower appellate court was right in declining to place reliance on Ext.A1 will on the ground that the executant has not stated the derivation of his title?"
9. The learned counsel appearing for the appellant contended that the lower appellate court was not justified in R.S.A. No. 92 of 2012 -6- relying on a document pressed into service at the appellate stage especially when it has nothing to do with the plaintiff as she was neither a party to the transaction nor the land involved in those deeds was the subject matter of the Will. It was also contended by the learned counsel that finding of the lower appellate court that since Will does not mention as to how the testator had derived the title to the property, the suit has to be dismissed cannot be sustained in law. The Will is of the year 1120 M.E. and there is nothing to show that the defendants had any manner of right over the suit property. Attention was also drawn to the fact that the defendants had approached the land tribunal for assignment of the property wherein they had shown the plaintiff's predecessor in interest as the owner of the property and that aspect has been omitted to be noticed by the lower appellate court and the reason given by the lower appellate court not to accept that as an admission conferring title on the plaintiff was not justified in law. Accordingly, it is R.S.A. No. 92 of 2012 -7- contended that the lower appellate court was erred in law in reversing the decree of the trial court.
10. Sri. N. Dharmadan, the learned senior counsel appearing for the respondents pointed out that this appeal has to fail on a very short ground. The learned senior counsel drew attention of this Court to the written statement filed by the defendants in which they had specifically disputed genuineness of the Will. Accordingly, it is contended that when the Will is disputed, it is incumbent on the part of the plaintiff to prove the due execution and attestation of the Will. The trial court grievously erred in law in holding that the examination of the Sub Registrar is sufficient to prove the due execution of the Will. Probably, according to the learned senior counsel, the trial court was unaware of the provisions in Indian Succession Act and the Indian evidence Act which deal with the drawing of a Will and proof of a Will. Referring to the decision reported in Gopalan v. Chandri [2013 (3) KLT 9] and Poulose A.V. v. R.S.A. No. 92 of 2012 -8- Indira M.R. And others [ILR 2010 (3) Kerala 388], the learned senior counsel went on to point out that it is absolutely necessary for the propounder of a Will to examine at least one of the attesting witnesses to prove the due execution of a Will. The examination of the Sub Registrar is not a substitute for the said mode of proof of Will. Even assuming that there is no dispute regarding the genuineness of Will still the law as it now stands is that one of the attesting witnesses will have to be examined to prove the due execution of Will. Apart from the above aspect, the learned senior counsel also pointed out that the propounder has an added burden to remove any suspicious circumstances that may surround the execution of a Will. The omission to examine one of the attesting witnesses is sufficient to dismiss this appeal.
11. The learned senior counsel also pointed out that the reliance placed on the so called admission of the defendants is of no avail to the plaintiff. May be that the R.S.A. No. 92 of 2012 -9- defendants had sought for assignment of the property and might have shown the plaintiff as their landlord. But it is well settled by now that admissions cannot confer title especially in the light of the fact that Will has not been proved.
12. It must be said that there is considerable force in the submissions made by the learned counsel for the respondents. Admittedly the plaintiff traces her title to Ext.A1 Will of the year 1120 M.E. She claims that it was executed by her father bequeathing the property to her. In the trial court, the Sub Registrar was examined and he was asked to produce document which is produced and marked as Ext.X1. After comparison of Ext.A1 with the entries in the record kept in Sub Registrar's Office, the trial court came to the conclusion that the Will has been proved.
13. Section 63 of the Indian Succession Act deals with the mode of drawing up of a Will and Section 68 of the Indian Evidence Act, regarding its prove. There is a catena R.S.A. No. 92 of 2012 -10- of decisions as to how the will is to be proved. It is not necessary to refer to all of them except possibly the decision reported in H. Venkatachala Iyengar v. B.N. Thimmajamma and others [AIR 1959 Supreme Court 443] which is treated as magna carta in this respect. So also considerable assistance is rendered by two decisions relied on by the learned senior counsel for the respondents.
14. In the case of a Will, it is absolutely essential that at lease one of the attesting witnesses will have to be examined to prove the due execution and attestation of the document. Well, the Will has to be attested by two attesting witnesses. If only one attesting witness is called to prove the due execution and attestation of the Will, he has to necessarily speak about the attestation by the other witness also.
15. One should remember that the Will speaks from the death of the testator. One should also remember that the testator has chosen the attesting witness for attesting R.S.A. No. 92 of 2012 -11- the Will. That means he has reposed confidence in them. it is because of these reasons and since the Will speaks about the death of the testator that the law insists that at least one of the attesting witnesses will have to be examined.
16. The duty of the attesting witness as is enjoined by law is to prove the due execution of Will which means that the Will was in fact executed by the testator and he or she had a sound disposing state of mind at the relevant time. Execution of the Will and attestation are two different aspects.
17. The burden is on the propounder to prove the due execution and attestation of Will. As already stated, it is mandatory on his part to see that at least one of the attesting witnesses is examined to prove the due execution of the Will. Apart from the said duty, if there are any suspicious circumstances surrounding the execution of the Will, the propounder has an added burden to dispel those suspicious circumstances and satisfy the conscience of the R.S.A. No. 92 of 2012 -12- court that the document in question is the last testamentary dispossession of the testator. In the decisions H. Venkatachala Iyengar v. B.N. Thimmajamma and others [AIR 1959 Supreme Court 443], Gopalan v. Chandri [2013 (3) KLT 9] and Poulose A.V. v. Indira M.R. And others [ILR 2010 (3) Kerala 388], these aspects have been highlighted and it is unnecessary to extract the relevant portions. The view has been uniform and consistent.
18. It is true that there is some significance in the will being registered. But it is also well settled that proof of registration by itself is not sufficient to prove the due execution and attestation of the Will. True, registration is an official act and official act will be deemed to have been done in accordance with law and presumption under Section 114 of Indian Evidence Act is available. But, the evidence of the Sub Registrar about the registration of Will is no substitute for the proof to be offered by the attesting witness regarding the due execution and attestation of the Will. That duty has R.S.A. No. 92 of 2012 -13- to be performed by one of the attesting witnesses. If as a matter fact, the due execution and attestation of the Will is proved through an attesting witness, then the fact that the Will is registered may lend credence to the Will.
19. In the case on hand, surprisingly enough, the trial court has has simply accepted the evidence of Sub Registrar about the registration of the will and has arrived at a conclusion that the Will is duly proved. Obviously, the said approach is incorrect and cannot be sustained in law. Unfortunately, the lower appellate court has also not adverted to this question at all. The lower appellate court was more concerned about the derivation of title in the Will rather than the question as to whether there is any evidence to prove the genuineness of the Will. The lower appellate court went on the footing that since the testator had not traced his title in Ext.A1 Will, it cannot be relied on. The basic and the foremost requirement is whether the Will itself is proved. The lower appellate court has not considered this R.S.A. No. 92 of 2012 -14- question.
20. One of the contentions raised on behalf of the appellant is that in an application filed for assignment of tenancy right under Section 72B of Kerala Land Reforms Act, the defendants had shown the plaintiff's predecessor in interest as a landlord. This according to the appellant is sufficient to show that the defendants admitted the title of the plaintiff.
21. It is difficult to accept the above contention. Having traced title to a Will and having failed to prove the genuineness of a Will, it is not possible for the plaintiff to fall back upon the so called admission made by the defendants. One cannot omit to note the specific contention raised in the written statement in this case was by pointing out that the Will is not genuine and plaintiff has no title to the suit property. Further, it is well settled that the admission can hardly confer title. One has to remember that the suit is one of declaration and mandatory injunction based on the title of R.S.A. No. 92 of 2012 -15- the plaintiff. It is trite that in such cases, the burden is on the plaintiff to prove her title.
22. Therefore, the judgment and decree of the lower court though for different reasons cannot be found fault with.
23. Faced with the above situation, the learned counsel appearing for the appellant relying on Order XLI Rule 23(A), contended that this is one of such cases falling within the ambit of that provision whereby the plaintiff should be afforded an opportunity to prove the genuineness of a Will by calling one of the attesting witnesses to prove its due execution and attestation.
24. It is also contended that the courts below may be directed to reconsider the issue regarding the admission made by the defendants regarding the title of the landlord.
25. The learned senior counsel opposed the above plea and contended that the remand now sought for does not fall within the ambit of any of the provisions contained in R.S.A. No. 92 of 2012 -16- Order XL1 and there is no ground urged in the appeal memorandum for seeking a remand. It was also contended that there is not even a whisper regarding the genuineness of the will in the appeal memorandum and in the light of these facts, a remand is not called for.
26. The learned senior counsel may be fully justified in his submission, but the fact remains that the trial court and the lower appellate court have not adverted to the real issue involved in the case and gone on to decide the suit on extraneous considerations. The real issue involved was the genuineness of the Will namely Ext.A1 document produced by the plaintiff. If as a matter of fact, the plaintiff fails to prove its due execution and attestation, that is the end of her case. Further probe is necessary only if the genuineness of the will is established. Probably the plaintiff might have been misled by the attitude of the trial court that the examination of the Sub Registrar is sufficient to prove the genuineness of the Will. The law on this aspect is R.S.A. No. 92 of 2012 -17- very clear.
27. It is contended by the defendants that the property is a puramboke land and that finding needs to be interfered with.
28. However one fact cannot be overlooked and that is defendants did seek assignment of the land and in those proceedings, the predecessors in interest of the plaintiff are shown as their landlord. As to what effect it can have on the claim of title is a different question. It is felt that in the interest of justice, an opportunity needs to be given to the plaintiff to prove the due execution and attestation of the Will.
For the above reasons, this appeal is allowed. The impugned judgments and decrees of the courts below are set aside and the matter is remanded to trial court for determining the genuineness of the Will in accordance with law. The parties will be allowed to amend the pleadings and they will be also allowed to adduce further evidence in R.S.A. No. 92 of 2012 -18- accordance with law. The parties shall appear before the trial court on 06.08.2014 and the trial court may make every endeavour to dispose of the matter as expeditiously as possible, at any rate, within a period of five months from the date of appearance of the parties.
The appeal is disposed of as above.
Sd/-
P.BHAVADASAN JUDGE ds //True Copy// P.A. To Judge