Kerala High Court
C.P.Joseph vs C.P.Francis on 23 January, 2025
RSA No.94 of 2014
1
2025:KER:4963
CR
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
THURSDAY, THE 23RD DAY OF JANUARY 2025 / 3RD MAGHA, 1946
RSA NO. 94 OF 2014
AGAINST THE JUDGMENT&DECREE DATED 26.08.2013 IN AS NO.6 OF 2012 OF
III ADDITIONAL SUB COURT, ERNAKULAM ARISING OUT OF THE JUDGMENT & DECREE
DATED 03.09.2012 IN OS NO.722 OF 2009 OF I ADDITIONAL MUNSIFF
COURT,ERNAKULAM
APPELLANTS/APPELLANTS/PLAINTIFFS:
1 C.P.JOSEPH. AGED 62 YEARS
SON OF LATE C.R.PIUS, CHALONA HOUSE, NORTH KALAMASSERY,
PIN-683104.
2 C.P.RAPHEL
AGED 60 YEARS
SON OF LATE C.R.PIUS, CHALONA HOUSE, THANNIKKAL,
ELAMAKKARA, PIN-682026.
3 C.P.GEORGE
AGED 57 YEARS
SON OF LATE C.R.PIUS, CHALONA HOUSE, THANNIKKAL HOUSE,
ELAMAKKARA, PIN-682026.
4 C.P.SEBASTIAN
AGED 54 YEARS
S/O. C.R.PIUS, CHALONA HOUSE, L.F.C. ROAD, NORTH KALOOR,
KOCHI-682017.
5 DESTY THOMAS
AGED 50 YEARS
RSA No.94 of 2014
2
2025:KER:4963
W/O. THOMAS, WARRITH HOUSE, MALIPPURAM, VALAPPU, PIN-
682511.
BY ADVS.
A.B.JALEEL
RADHIKA S.ANIL
NAZLIN JALEEL
NIJAZ JALEEL
RESPONDENTS/RESPONDENTS/DEFENDANTS:
1 C.P.FRANCIS, AGED 40 YEARS
S/O.C.P.PIUS, CHALONA HOUSE, NORTH KALOOR, KOCHI -17.
2 CLARA JACOB, AGED 47 YEARS
W/O.JACOB, PALAPARAMBIL HOUSE, JOURNALIST COLONY, NEAR
SEVETH DAY SCHOOL, KALOOR
3 KAVITHA ANTONY
AGED 30 YEARS
W/O.MAPPILASSERY HOUSE, ELAMAKKARA, ETTUKATTIL TEMPLE ROAD,
KOCHI - 16.
4 SAVITHA SACHIN
AGED 26 YEARS
W/O.SACHIN, AAYILLAM HOUSE, ASHOKA ROAD, LIBERTY LANE,
KALOOR.
BY ADVS.
R1 AND R2 BY ADVS.SRI.SABU P.JOSEPH
SRI.C.N.SREEKUMAR
SMT.MANJU PAUL
SRI.ANIL PRASAD
SMT.G.ASHWINI
R3 BY ADV. SRI. K.SAJAN KURIAKOSE
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 17.01.2025,
THE COURT ON 23.01.2025 DELIVERED THE FOLLOWING:
RSA No.94 of 2014
3
2025:KER:4963
CR
JUDGMENT
1. Appellants are the plaintiffs in the suit.
2. The suit was for the partition of Plaint A and B schedule properties and a permanent prohibitory injunction against alienation and committing waste. Plaint A and B schedule properties belonged to Pius and his wife, Philomina Pius, respectively. Pius and Philomina Pius died on 24.11.2004 and 27.11.2008, respectively.
3. The plaintiffs 1 to 5 and defendants 1 and 2, and Mariya, the mother of defendants 3 and 4, are the children of Pius and Philomina Pius. Pius was the owner of the plaint A schedule property, which had an extent of 7.875 cents of land, and the Tharawad house therein. Philomina Pious had 7.233 cents of RSA No.94 of 2014 4 2025:KER:4963 land, out of which Philomina executed Ext.B2 Settlement Deed in favour of the fourth plaintiff for 4 cents, and the balance of 3.233 cents is included in plaint B schedule property. Plaint A and B schedule properties formed a compact plot within a common boundary.
4. As per plaint allegations, when the first defendant refused the demand of partition from the part of plaintiffs 1 and 2, claiming that he became the absolute owner of the plaint schedule properties by a Joint Will executed by the father and mother, the plaintiffs 1 and 2 took a copy of the same from the Sub Registrar Office and understood that a Will is falsely created in the name of the father and the mother in favour the 1st defendant. The plaintiffs challenged the testamentary capacity of the father and the mother and the execution of the Will.
RSA No.94 of 20145
2025:KER:4963
5. The plaintiffs sought partition of plaint A and B schedule properties, praying to allot 1/8 share to each of the plaintiffs and defendants 1 and 2 and 1/8 share jointly to defendants 3 and 4.
6. Defendants 3 and 4 remained absent, and they were set ex parte.
7. The suit was contested by defendants 1 and 2 by filing a Written Statement. They admitted the relationship of the parties and the original ownership of the parents over the plaint schedule properties. They claimed that Pius and Philomina had executed a registered Joint Will dated 27.01.2003 in favour of the first defendant bequeathing the plaint A and B schedule properties in favour of the first defendant with the stipulation to make payments to other sharers except for the 4th plaintiff within a period of five years after the death of both parents and creating a charge over the plaint schedule properties with respect to those payments.
RSA No.94 of 20146
2025:KER:4963
8. Thus, the 1st defendant is claiming exclusive title over the plaint schedule properties on the strength of the said Will. The certified copy of the said Will is marked as Ext.A4 from the side of the plaintiffs, and the original of the said Will is marked as Ext.B3 from the side of the defendants.
9. On the side of the plaintiffs, PWs1 and 2 were examined, and Exts.A1 to A9 were marked. On the side of defendants 1 and 2, DWs 1 to 7 were examined, and Exts.B1 to B11 were marked. PW1 is the fourth plaintiff. PW2 is the Doctor who issued Ext.A7 Certificate showing that Pius was under his treatment from 13.09.2000 to 24.10.2000 at P.N.V.M. Hospital, Ernakulam. DW1 is the first defendant, DW2 is the second defendant, DW3 is cited as the Scribe of Ext.B3 Will, DW4 is the Sub Registrar who registered Ext.B3 Will, DW5 is the wife of the first defendant, who is the second Attesting Witness in Ext.B3, DW6 is the husband of the 3rd defendant, who is the first Attesting RSA No.94 of 2014 7 2025:KER:4963 Witness in Ext.B3 and DW7 is the Doctor who proved Ext.B11 original Treatment File of Lissie Hospital, Ernakulam.
10. The Trial Court found that the testators had testamentary capacity at the time of execution of Ext.B3 Will; that the evidence of DW5 is in compliance with Section 63(c) of the Indian Succession Act, whereas the evidence of DW6 is not in compliance of Section 63 of the Indian Succession Act; that though the evidence DW6 is not in compliance with Section 63(c) of the Indian Succession Act, it is proved that Ext.B3 is signed by the testators as well as DW5 and DW6 as attesting witnesses, in view of the evidence of DW5 and DW4 Sub Registrar. The Trial Court arrived at the conclusion that Pius and Philomina executed and registered Ext.B3 Will during their lifetime by their own free will, and the first defendant is entitled to inherit the entire property, and based on such conclusion, the suit was dismissed.
RSA No.94 of 20148
2025:KER:4963
11. The plaintiffs filed an appeal before the First Appellate Court, which dismissed the appeal and confirmed the judgment and decree passed by the Trial Court.
12. This Regular Second Appeal was admitted, formulating the following substantial question of law.
"Is the evidence of DW6 in consonance with the requirement of the Indian Succession Act?"
13. When this Regular Second Appeal came up for final hearing, I heard the learned Counsel for the appellant Sri. Nazlin Jaleel and the learned Counsel for the 1st respondent Sri. Sabu P Jose. After hearing the counsels on either side and in view of the arguments addressed before this Court, the following additional question of law was framed.
"Whether Ext.A4/B3 Will is void under Section 67 of the Indian Succession Act in view of the attestation of the same, who is the first defendant, and, DW6, who is the RSA No.94 of 2014 9 2025:KER:4963 husband of the third defendant, since benefits are reserved in the said Will in favour of those defendants?"
14. Thereafter, further opportunity was given to the counsels for further hearing. I answer the above substantial questions of law as Nos.1 and 2 in the light of the arguments addressed by the counsels in the succeeding paragraphs. Question of law No.1:
15. In the evidence of DW6, who is the first Attesting Witness to Ext.B3, he specifically stated that he has not seen the executants signing in Ext.B3. A specific leading question was put to DW6 that the signatures in Ext.B3 are the signatures of the executants and he pleaded ignorance. He added that he did not see them signing. The evidence of DW6 does not satisfy the requirements of Section 63(c) of the Indian Succession Act. Hence, the above substantial question of law is answered in the negative and in favour of the appellant.
RSA No.94 of 201410
2025:KER:4963
16. But the Trial Court, as well as the First Appellate Court, relied on the evidence of DW4/Sub Registrar before whom Ext.B3 was registered to hold that Ext.B3 is signed by the testators and DW5 and DW6. Under Section 70 of the Bharatiya Sakshya Adhiniyam, 2023, corresponding to Section 71 of the Indian Evidence Act, 1872, when the attesting witness denies the execution of the document, it is permissible for the Propounder to prove the execution by other evidence. Hence, it is permissible for the 1st defendant/Propounder to prove the attestation through the evidence of the DW4 Sub Registrar. In view of S.71 of the Bharatiya Sakshya Adhiniyam, corresponding to Section 70 of the Indian Evidence Act, the Trial Court and the First Appellate Court are fully justified in holding that execution of Ext.B3 is proved in compliance with Section 63
(c) of the Indian Succession Act. Hence, even though the above substantial question of law is answered in favour of the RSA No.94 of 2014 11 2025:KER:4963 appellants, it would not enable this Court to interfere with the judgment and decree of the Trial Court, which is confirmed by the First Appellate Court.
Question of law No.2:
17. Ext.B3 is a registered Will proved as executed by Pius and Philomina. It is proved before the Court. In Ext.B3 Will, the plaint schedule properties are bequeathed in favour of the 1st defendant. It is stated that the 4th plaintiff is not given any share since he is already given 4 cents of land as per Ext.B2. The further stipulation in Ext.B3 Will is that the 1st defendant shall pay certain amounts to other sharers within a period of five years from the date of death of both the testators. The 1st defendant is directed to give Rs.1 lakh each to plaintiffs 1 to 3 and Mariya, who was the mother of defendants 3 and 4, and Rs.50,000/- each to the 5th plaintiff and the 2nd defendant. It is stated that in case the said amounts are not paid, the same shall RSA No.94 of 2014 12 2025:KER:4963 be a charge on the properties included therein. It is also stated that in case other movable and immovable properties belonging to the testators are found after the death of the testators, the 1st defendant alone shall be entitled to get the said properties after the death of the testators.
18. The counsel for the appellant, as well as the counsel for the 1st respondent, argued much on the applicability of S.67 of the Indian Succession Act to the facts and circumstances of the case.
19. The learned Counsel for the appellant contended that in view of S.67, the bequest in favor of the 1st defendant, who is the husband of the attesting witness DW5, is void. The learned Counsel relied on the decision of this Court in Lizamma v. Saramma and others 2017 (3) KHC 27 in support of her argument. The learned Counsel for the appellant relied on the decision of this Court in Raveendran Nair v Raman Nair and RSA No.94 of 2014 13 2025:KER:4963 others 2019 (1) KLT 939 in which it is held that a Will or codicil attested by legatees alone or the person interested with the legatees who holds a fiduciary relationship with the legatee would itself amount to suspicious circumstances attached to its execution.
20. On the other hand, the learned Counsel for the 1st respondent contended that S.67 is not applicable to the facts and circumstances of the case. The learned Counsel for the 1st respondent cited the decision in Janu and others v. Thanka and others 2012 (4) KHC 361 in which it is held that the mere fact that the beneficiaries had also appended their signature among other witnesses will not vitiate the Will and dispositions made thereunder when there is nothing in evidence to show that the beneficiaries had influenced the testator. Learned counsel argued that the purpose behind S.67 is to avoid influence exerted by the attesting witnesses on the testator. The plaintiffs RSA No.94 of 2014 14 2025:KER:4963 do not have a case that it is at the influence of DW5; the Will was executed in favour of her husband, who is the 1st defendant. The learned Counsel relied on the decision of the Hon'ble Supreme Court in Rur Singh (D) Th. Lrs and others v. Bachan Kaur 2009(11) SCC 1 to demonstrate that in that case also, the Will was signed by one of the beneficiaries, and even then, the Hon'ble Supreme Court upheld the Will, finding that the attestation by one of the beneficiaries does not make his evidence unbelievable.
21. S.67 of the Indian Succession Act is extracted for reference.
"A Will shall not be deemed to be insufficiently attested by reason of any benefit thereby given either by way of a bequest or by way of appointment to any person attesting it, or to his or her wife or husband; but the bequest or appointment shall be void so far as concerns the person RSA No.94 of 2014 15 2025:KER:4963 so attesting or the wife or husband of such person or any person claiming under either of them. Explanation.- A legatee under a Will does not lose his legacy by attesting a codicil which confirms the Will."
22. Section 67 provides that merely because a benefit is given either by way of a bequest or by way of appointment to any attesting witness, the Will shall not be deemed to be insufficiently attested, but at the same time, it clearly mandates that the bequest or appointment shall be void so far as it relates to the attesting witness or the wife or the husband of such person.
23. In the case on hand, the wife of the 1st defendant, who is examined as DW5, is the attesting witness to Ext.B3 Will. The bequest in Ext.B3 Will is in favour of the 1st defendant. Hence in view of Section 67, such bequest in favour of the 1st defendant RSA No.94 of 2014 16 2025:KER:4963 is void. Nevertheless, it would not affect the validity of Ext.B3, which Will be attested by DW5. But the sole bequest made in Ext.B3 Will is in favour of the 1st defendant, and hence the entire Will becomes void on account of the attestation of DW5 to the Will.
24. The provisions of Part VI relating to testamentary succession under the Indian Succession Act, which are applicable to Hindu, Buddhist, Sikh, or Jain, are included in Schedule III. As per Section 57, provisions included in Schedule III alone are applicable to them. Section 67 is absent in Schedule III, and hence, the said provision is not applicable to Hindu, Buddhist, Sikh, or Jain. In the decisions in Jose v. Ouseph and others 2006(4) KLT 991 and Lizamma (supra), this Court made it clear that Section 67 is not applicable to Hindus. In the case on hand, the parties are admittedly Christians, and hence, they are governed by the provisions of the Indian Succession Act, RSA No.94 of 2014 17 2025:KER:4963 including Section 67, coming under Part VI. The decisions relied on by the learned Counsel for the 1st respondent are not applicable to the facts and circumstances of the case, as those are decisions relating to Hindus to whom Section 67 is not applicable.
25. The intention of the legislature is specific and clear in Section 67 that the bequest or appointment shall be void so far as it relates to the attesting witness or the wife or the husband of such person or any person claiming under either of them. It does not admit any other interpretation. Any other interpretation could not be brought out by the Counsel for the 1st respondent. The learned Single Judge of this Court had occasion to consider the scope of Section 67 in the decision Lizamma (supra). It is apposite to extract relevant portions of Paragraphs No.8 and 9 in the said decision.
RSA No.94 of 201418
2025:KER:4963 "On a careful reading of the Section, the following matters will be clear:
i.A Will shall not be deemed to be insufficiently attested by reason of any benefit given to any person attesting it. ii.The benefit can either be by way of a bequest or by way of an appointment (like executor, administrator, etc.) iii.No deemed insufficiency in attestation, even if such a benefit is given to any person attesting it or to his or her wife or husband, as the case may be.
iv.However, the bequest or appointment shall be void so far as it concerns the person so attesting, or the wife or husband of the attestor, as the case may be, or any person claiming under either of them.
9. The sum and substance of the Section is that merely for the reason that a beneficiary has attested a Will, the RSA No.94 of 2014 19 2025:KER:4963 document will not become void ipso facto. If any benefit is given to the attestor by way of a bequest or by way of an appointment, he will not get any right as that bequest or appointment shall be void insofar as he is concerned. Not only that, the attestor's wife or husband, as the case may be, and persons claiming under either of them are also precluded from claiming any benefit or appointment, as any such benefit or appointment conferred on them by the Will shall be void."
26. In the above cited case also, the second attesting witness to Ext.A2 Will is the husband of the 1st defendant. Hence, this Court confirmed the finding of the Trial Court that the 1st defendant cannot claim any right by virtue of A2 Will therein. The said decision is squarely applicable to the facts and circumstances of the present case.
RSA No.94 of 201420
2025:KER:4963
27. In view of the aforesaid discussion, I answer the aforesaid substantial question of law in the affirmative and in favour of the appellant.
28. The Trial Court, as well as the First Appellate Court, failed to consider Section 67 while deciding the case and hence could not arrive at the right conclusion.
29. In view of the answer to the substantial question of law No.2, this Regular Second Appeal is allowed without costs, setting aside the judgments and decrees passed by the Trial Court as well as the First Appellate Court and decreeing O.S 722/2009 on the files of the First Additional Munsiff's Court:
a. by passing a Preliminary decree for partition allowing partition of plaint A and B schedule properties in eight equal shares, allotting 1/8 share to each of the plaintiffs and RSA No.94 of 2014 21 2025:KER:4963 defendants 1 and 2 and the remaining 1/8 share to the defendants 3 and 4 jointly. b. granting a permanent prohibitory injunction restraining defendants 1 and 2 from alienating or encumbering the plaint A and B schedule properties and from committing any sort of waste therein.
c. allowing the parties to apply for a final decree in accordance with the Preliminary Decree. d. The suit is adjourned sine die.
Sd/-
M.A.ABDUL HAKHIM JUDGE Jma/Shg