A.S. No. 295 of 1994 (O.S. 31/1984, Sub Court Cherthala)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE HARUN-UL-RASHID FRIDAY, THE 13TH DAY OF JANUARY 2012/23RD POUSHA 1933 AS.No. 295 of 1994 ( ) ---------------------OS.31/1984 of SUB COURT, CHERTHALA APPELLANTS/PETITIONERS IN I.A.1180/91 PERSONS SOUGHT TO BE IMPLEADED: -----------AS ADDL.PLAINTIFFS 2 TO 7. 1. V. SARADAMMAL, D/O.PARVATHI AMMAL, MALIKKAKKAL MADAM, THRIKKARIYOOR VILLAGE, -DO- MURI, KOTHAMANTALAM TALUK, ERNAKULAM. 2. VENKITASUBRAMANIYAN, S/O.SIVASWAMY AYYAR OF -DO- -DO- 3. ANANDA VISWANATHAN, S/O. -DO-DO4. BHHAGEERATHI, D/O.SARADAMMAL, -DO-DO5. PARVATHI AMMAL OF -DO-DO- 6. GEETHA OF -DO-DO- BY ADVS.SRI.P.R.VENKETESH SRI.P.R.RAJA - RESPONDENTS/CR.PETITIONERS IN I.A.1180/91/DEFENDANTS 1 TO 11 AND -------------- 13 TO 20 AND PERSONS SOUGHT TO BE IMPLEADED. 1. SUBRAYA EMBRAN KRISHNAN EMBRAN, ELANGIKKAL MADOM, PALLIPURAM VILLAGE, -DO- MURI, CHERTHALA TALUK. 2. PADMAVATHI AMMAL OF -DO- -DO- 3. N.N.GANGADHARAN NAIR, KAMIYIN MADATHIL, NADUVILA VILLAGE, -DO-DO- VAIKOM. 4. MATHEW ULAHANNAN, RESIDINT AT NTHALIYADIYIL, PALLIPPURAM VILLAGE, CHENNAM PALLIPPURAM MURI. 5. NARAYANAN NAMBOODIRI KALATHIL AMBALATHIL OF -DO- VILLAGE, -DO- MURI. 6. JANAKI, W/O.SANKUNNI, RESIDING AT PUTHIYATTIL, THYCATTUSSERY VILLAGE3, -DO- MURI. 7. SANKUMMO DINAMONY OF -DO-DO- 8. JANAKY PANCHAMI OF -DO-DO- 9. VELAYUDHAN SHAJI, EDAVAZHIKKAL VEETTIL, PALLIPPURAM VILLAGE, - -DO- MURI. 10. KESAVAN, ALUNKAL VEETTIL OF -DO-do- **(DIED)** A.S.295/1994. -2- 11. OUSEPH, RESIDING AT PULIKKASSERY OF -DO- -DO- 12. NARAYANA PILLAI SOMAN PILLAI, THALIYADIYIL, PALLIPURAM VILLAGE, CHENNAM PALLIPPURFAM MURI. 13. KUNJAN KARUMBAN, -DO-DO- 14. KUMARAN, S/O.KUMARI, KAYI NIVAS, VATTAKKANNAM VELIYIL MADOM OF -DO- MURI. 15. MANI, W/O.KUMARAN, VATTAKKANAM VELIYIL MADAM OF -DO-DO- 16. KARTHIYAYANI BHARGAVI, VALLACHIRA VEETTIL, KULASEKHARAMANGALAM MURI, VAIKOM TALUK. 17. KARTHIYAYANI MEENAKSHI, MARIYATHU, V AYALAR UZHUVA MURI. 18. KARTHIYAYANI DAVAYANI, THOPPIL PARAMBIL, AROOR MURI. 19. RAJAMMA, RESIDING AT KANATNAM VELIYIL, PALLIPPURAM MURI. 20. M.S. GURUVAYURAPPAN, MALIKAKKAL MADOM, THRIKKARIYOOR VILLAGE, -DO MURI, KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT. - ADDL.21 BHANUMATHY KESAVAN, W/O. LATE KESAVAN, PARIMANATHU COLONY, MANNAPPURAM, THYKATTUSSERY P.O., CHERTHALA. 22. GIRIJA, D/O. -DO- -DO- 23. SALI BABU, -DO-DO24. KUMARI PAVITHRAN, -DO-DO25. SHIJI, -DO-DO- (LEGAL HEIRS OF DECEASED 10TH RESPONDENT ARE IMPLEADED AS ADDL.R21 TO R25 AS PER ORDER DTD. 28/10/2011 IN I.A.NO.2246/2011) R, By SRI.JOHNSON MANAYANI - R1 & R2 R6 to R9, R14 AND R15 By SRI.V.N.SWAMINATHAN,S.DILEEP R,R21 TO R25 By SRI.THOMAS J.ANAKKALLUNKAL SRI.UNNI SEBASTIAN KAPPEN THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 13-01-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **HARUN-UL-RASHID,J.** **------------------------------A.S. NO. 295 OF 1994 ------------------------------DATED THIS THE 13TH DAY OF JANUARY, 2012** ## **JUDGMENT** Petitioners in I.A.No.1180/91 in O.S.No.31/84 are the appellants. The appeal is filed challenging the judgment and decree dated 2-11-1993 in O.S.No.31/84 on the file of the Sub Court, Cherthala. Appellants are the persons sought to be impleaded as additional plaintiffs 2 to 7. The suit was filed for setting aside certain documents executed by the power of attorney holder of the plaintiff and for cancellation of the power of attorney. The sole plaintiff in the suit, namely, Alamelu Ammal, daughter of Lakshmi Ammal, expired during the pendency of the suit. Thereupon, I.A.No.1180/91 was filed by the appellants herein to implead themselves as additional plaintiffs 2 to 7 and additional 22[nd] defendant in the suit. The court below by order dated 8/10/1993 dismissed the said I.A. holding that the petitioners in the IA cannot be impleaded as legal representatives of the deceased original plaintiff. Consequently, the suit was dismissed by the court **-2-** ## **A.S.No.295/1994** below holding that the suit stands abated, since the legal representatives of the deceased plaintiff have not come on record within the period of 90 days. 2. The suit was filed for a declaration that the document No.45 dated 17/6/1982 of the Panavally SRO is null and void, in the alternative for setting aside the same, for setting aside the documents executed by the lst defendant in favour of defendants 2, 3 and 9, for a permanent injunction restraining the defendants 1 and 2 from entering into the plaint schedule property and from taking usufructs therefrom, not to interfere with the plaintiff's possession and enjoyment of the plaint schedule property, for recovery of possession of any portion of the plaint schedule property, if the court finds that the same is outstanding with any of the defendants along with the mesne profits and for other incidental reliefs. 3. The original plaintiff Alamelu Ammal died on 1/7/1991 during the pendency of the suit. The lst appellant, **-3-** ## **A.S.No.295/1994** namely, Saradammal, who is the lst petitioner in I.A.No.1180/91, is the daughter of Alamelu Ammal's sister. Petitioners 2 to 6 and counter petitioner No.21 in the IA are the children of Saradammal, the lst petitioner. The impleading application was filed by the petitioners for getting themselves impleaded as additional plaintiffs and additional defendant No.22, stating that on 4/1/1965 Alamelu Ammal executed a Will in favour of the lst petitioner and her children demising her assets in their favour. According to the appellants, as per the Will, whatever assets left behind by the deceased plaintiff belongs to the petitioners and respondent No.21 in the IA and as such they are to be impleaded as additional plaintiffs and additional defendant No.22. 4. Petitioners adduced oral and documentary evidence in support of the application for impleading. PWs.1 and 2 were examined and Exts.A1 and A2 were marked. Ext.A1 is the certified copy of the judgment in O.S.No.508/72 on the file of the Munsiff's Court, Cherthala. Ext.A2 is the Will deed of the year **-4-** ## **A.S.No.295/1994** 1965. Counter petitioners produced Ext.B1 copy of the plaint in O.S.No.19/92 on the file of the Munsiff's Court, Cherthala. Based on Ext.A2 Will deed the petitioners in IA.No.1180/91 claimed that themselves and respondent No.22 are the legal representatives of deceased Alamelu Ammal. The genuineness of the Will and validity thereof are disputed by the counter petitioners. Therefore, the court below had examined the questions as to whether Ext.A2 Will is one executed by Alamelu Ammal as alleged and as to whether the same can be treated as a valid Will whereunder petitioners could claim right over the assets of the deceased. 5. The counter petitioners disputed the execution of the Will. PW-1 is the lst petitioner in I.A.No.1180/91. She would swear that deceased Alamelu Ammal has executed the Will and that she has produced the Will as an exhibit in Ext.A1 case. On a perusal of Ext.A1 it is seen that the the original plaintiff Alamelu Ammal had produced the Will dated 4/1/1965 in O.S.No.508/72 and the same was marked as Ext.A3. PW-2 is an attestor to Ext.A2 **-5-** ## **A.S.No.295/1994** Will. The court below held that the evidence of PW-2 coupled with the fact that the original plaintiff (Alamelu Ammal) has produced Ext.A2 Will in Ext.A1 case show beyond doubt that it is Alamelu Ammal, who signed Ext.A2 Will as executant. The court below found that Ext.A2 registered Will was executed by the deceased Alamelu Ammal. The next question considered is as to whether Ext.A2 is executed by deceased Alamelu Ammal in accordance with Section 63 of the Indian Succession Act. The court below rightly observed that under Section 63 of the Act it is essential that a Will is to be attested by two or more attestors and that an attestor has to sign the Will with an intention to attest. The court below held that in Ext.A2 Will as attestor there is only one witness PW-2 and the scribe also has signed the Will styling himself as scribe of the Will. The court held that signing a Will without an intention to attest execution will not make the signatory an attestor and therefore despite the signature of the scribe in Ext.A2 in the absence of further evidence in that regard, **-6-** ## **A.S.No.295/1994** Gopala Pillai, the scribe of Ext.A2 cannot be treated as an attestor. For the said reason the court below held that the requirements of Section 63 © of the Act enjoining two attestors to a Will is not complied with in respect of Ext.A2. Therefore, the court held that the Will cannot be treated as a validly executed Will whereby legatees therein could claim some right thereunder. For the aforesaid reason, the court below dismissed I.A.No.1180/91 and consequently the decree was passed holding that the suit stands abated. 6. The Apex Court in **Mathew Oommen v. Suseela Mathew (2006 (1) KLT 626 (SC)** held that there is no requirement in law that a scribe cannot be an attesting witness and that for attestation what is required is an intention to attest. A Division Bench of this Court in **Varghese v. Oommen (1994 (2) KLT 620)** also held that a witness to be attesting witness need not be labelled as attesting witness and the place at which the signature or thumb mark of witness is subscribed to the document is not decisive to **-7-** ## **A.S.No.295/1994** hold whether witness was or was not an attesting witness. It was further held that the mere registration of a document is not sufficient proof of its due execution. It was also held that it is not necessary for the witnesses who are attesting the document to declare in the document itself that they are attesting witnesses. A Division Bench of this Court in the decision reported in **George v. Elizabeth and others (1999 (2) KLJ 863)** held that there is no prohibition that a person who drafted the document should not be an attestor to the document. 7. The question to be answered is as to whether Ext.A2 Will is to be rejected as not a Will, since there are no two attesting witnesses. A mere perusal of Ext.A2 it is difficult to say that there is non-compliance of the provisions contained in Section 63 of the Act. On a plain reading of Ext.A2 it is seen that the attesting witnesses, namely, PW2 and scribe have signed the document in their capacity as attestors. It is true that one of the witnesses is the person, who has prepared the document. He put his signature in **-8-** ## **A.S.No.295/1994** the document not in his capacity as a scribe, but as an attesting witness. In the document it is stated that the scribe 2[nd] witness has prepared the document, which by itself is not sufficient to say that the said witness is not an attesting witness. Ext.A2 is a registered Will. The execution of the document is proved and the court below held that it is Alamelu Ammal, who signed Ext.A2, executed the document. In these circumstances, the finding of the court below that in respect of Ext.A2 Will the requirements of Section 63(c) of the Act enjoining two attestors to a Will is not complied with and therefore Ext.A2 cannot be treated as a validly executed Will whereby legatees therein who claim right thereunder, is unsustainable. In these circumstances, the order dated 8/10/1993 in I.A.No.1180/91 in O.S.No.31/84 on the file of the Sub Court, Cherthala is set aside. Application for impleading is allowed. Consequently, the decree and the order dated 2/11/1993 dismissing O.S.No.31/84 as abated is also set aside. The case is remanded to **-9-** ## **A.S.No.295/1994** the court below for fresh disposal in accordance with law. Since the suit is of the year 1984, the court below shall dispose of the suit as expeditiously as possible, at any rate, within a period of six months from the date of receipt of a copy of this judgment. **Sd/HARUN-UL-RASHID, JUDGE.** ## **kcv.**