Baby Mol Varghese Pulikkottil v. P.S. Jacob & Others – RSA Nos. 911, 1013 & 1014 of 2008 (Kerala High Court)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** ## **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** ## **MONDAY ,THE 04TH DAY OF FEBRUARY 2019 / 15TH MAGHA, 1940** **RSA.No. 911 of 2008** **AGAINST THE ORDER/JUDGMENT IN AS 34/2006 of DISTRICT COURT,KOZHIKODE DATED 10-06-2008 AGAINST THE ORDER/JUDGMENT IN OS 497/1999 of PRINCIPAL MUNSIFF COURT KOZHIKODE-II** **APPELLANTS/(APPELLANTS IN THE LOWER APPELLATE COURT AND DEFENDANTS IN THE TRIAL COURT):** **1 BABY MOL VARGHESE PULIKKOTTIL, CHUMMAR, 19930, SOUTH WEST ROOK, DRIVE, PORT LANE, 97006, U.S.A., REPRESENTED, BY POWER OF ATTORNEY HOLDER P.U., DAVIS, PULIKOTTIL HOUSE, CHOWANOOR, KUNNAMKULAM-680 503 2 P.U.DAVIS S/O P.V. UKKARU PULIKOTTIL HOUSE, CHOWANOOR,, KUNNAMKULAM 680 503. BY ADVS. SRI.R.D.SHENOY (SR.) SRI.S.VINOD BHAT** ## **RESPONDENTS/(RESPONDENTS IN THE APPELLATE COURT AND PLAINTIFFS 2 TO 5 IN THE TRIAL COURT):** |**1**|**P.S.JACOB**| |---|---| ||**RESIDING AT E-63, LAJPAT NAGAR, SAHIABAD, UTTARPRADESH,**| ||**REPRESENTED BY POWER OF ATTORNEY HOLDER-P.S.JOB,**| ||**RESIDING AT KANIYAMKULAM VALIYA VEEDU, CHUNGAM,**| ||**KOTTAYAM**| |**2**|**MRS. JOYCE JACOB P.C. KUNHIMOL**| ||**W/O LATE T.I. JACOB RESIDING AT KANIYAMKULAM, VALIYA**| ||**VEEDU, CHUNGAM, KOTTAYAM.**| |**3**|**P.S. JOB S/O LATE P.I. SIMON**| ||**RESIDING AT KANIYAMKULAM VALIYA VEEDU,, CHUNGAM,**| ||**KOTTAYAM.**| **RSA.Nos. 911, 1013 & 1014 of 2008 2** **4 MRS. SHEEBA STEPHEN D/O LATE P.I.SIMON AT E 63, LAJPAT NAGAR, UTTAR PRADESH,, REPRESENTED BY POWER OF ATTORNEY HOLDER, P.S.JOB, KANIYAMKULAM VALIYA VEEDU, CHUNGAM,, KOTTAYAM.** **BY ADVS. SRI.A.RANJITH NARAYANAN SRI.C.P.MOHAMMED NIAS SRI.S.K.SAJU** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 04.02.2019, ALONG WITH RSA.1013/2008, RSA.1014/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **RSA.Nos. 911, 1013 & 1014 of 2008 3** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **MONDAY ,THE 04TH DAY OF FEBRUARY 2019 / 15TH MAGHA, 1940** ## **RSA.No. 1013 of 2008** **AGAINST THE ORDER/JUDGMENT IN AS 33/2006 of DISTRICT COURT,KOZHIKODE DATED 10-06-2008** **AGAINST THE ORDER/JUDGMENT IN OS 773/2000 of PRINCIPAL MUNSIFF COURT KOZHIKODE-II DATED 20-12-2004** **APPELLANT/(APPELLANT BEFORE THE LOWER APPELLATE COURT AND PLAINTIFF IN THE TRIAL COURT:** **BABY MOL VARGHESE CHUMMAR, 19930, SOUTH WEST ROOK DRIVE, PORT LANE, 970096, U.S.A REPRESENTED BY POWER OF ATTORNEY HOLDER P.U.DAVIS.PULIKOTTIL HOUSE,, CHOWANOOR KUNNAMKULAM 680 503.** **BY ADVS. SRI.R.D.SHENOY (SR.) SRI.S.VINOD BHAT** **RESPONDENTS/(RESPONDENTS BEFORE THE LOWER APPELLATE COURT AND DEFENDANTS IN THE TRIAL COURT): 1 JOB P.C.,D/O.LATE P.I.CHUMMAR, RESIDING AT KANIYAMKULAMVALIYA VEEDU,, CHUNGAM, KOTTAYAM. 2 KUNHUMOL P.C RESIDING AT KANIYAMKULAMVALIYA VEEDU,, CHUNGAM, KOTTAYAM. 3 GANGADHARAN UNNI, S/O.NARAYANAKURUP VALAYANAD AMSOM AND DESOM, KOZHIKODE TALUK. BY ADVS. SMT.P.K.SHAKKEELA SRI.C.P.MOHAMMED NIAS** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 04.02.2019, ALONG WITH RSA.1014/2008, RSA.911/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **RSA.Nos. 911, 1013 & 1014 of 2008 4** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **MONDAY ,THE 04TH DAY OF FEBRUARY 2019 / 15TH MAGHA, 1940** **RSA.No. 1014 of 2008** **AGAINST THE ORDER/JUDGMENT IN AS 35/2006 of DISTRICT COURT,KOZHIKODE DATED 10-06-2008** **AGAINST THE ORDER/JUDGMENT IN OS 264/1999 of PRINCIPAL MUNSIFF COURT ,KOZHIKODE-II DATED 20-12-2004** **APPELLANT/(APPELLANT BEFORE THE LOWER APPELLATE COURT AND PLAINTIFF IN THE TRIAL COURT):** **BABY MOL VARGHESE D/O.PULIKKOTTIL CHUMMAR, 19930, SOUTH WEST ROOK DRIVE, PORT LANE, 97006,U.S.A ,REPRESENTED BY POWER OF ATTORNEY HOLDER P.U.DAVIS, PULIKOTTIL HOUSE, CHOWANOOR, KUNNAMKULAM 680 503.** **BY ADVS. SRI.R.D.SHENOY (SR.) SRI.S.VINOD BHAT** **RESPONDENT/(RESPONDENT BEFORE THE LOWER APPELLATE COURT AND 3RD DEFENDANT IN THE SUIT):** **KUNHUMOL P.C. KANNIYAMKULAM, VALIYA VEEDU, CHUNGAM, KOTTAYAM.** **BY ADVS. SRI.SHAKKEELA P.K. SRI.C.P.MOHAMMED NIAS** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 04.02.2019, ALONG WITH RSA.1013/2008, RSA.911/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **RSA.Nos. 911, 1013 & 1014 of 2008 5** ## **C.R** ## **R.S.A.Nos.911, 1013 & 1014 of 2008 ----------------------------------** ## **JUDGMENT** These three appeals are preferred against the common decree and judgment in A.S Nos.34 of 2006,33 of 2006 and 35 of 2006 on the files of the District Court, Kozhikode and the suits in O.S.Nos.497 of 1999, 773 of 2000 and 264 of 1999 of Principal Munsiff's Court, Kozhikode. The suit in O.S.No.264 of 1999 is the leading case. The said suit was filed by one Baby Mol Varghese, a sole legatee under Ext A3 registered Will claiming to be the owner of plaint schedule seven cents of property left out by one T.K.Baby, the testatrix of Ext.A3 Will. The other two suits were filed by the near relatives of T.K.Baby. The suit in O.S.No.497 of 1999 is by the uncle of T.K.Baby against the plaintiff in the leading case and another. That suit was filed for permanent prohibitory injunction with respect to ## **RSA.Nos. 911, 1013 & 1014 of 2008 6** the above seven cents of property. The other suit in O.S.No.773 of 2000 was also filed by the plaintiff in the leading case for permanent prohibitory injunction. The leading case is also filed for prohibitory injunction not to alienate, encumber the property and not to alter the peaceful possession of plaintiff by any of the defendants. The trial court dismissed the leading case and the suit in O.S.No.773 of 2000. But decreed the connected suit in O.S.No.497 of 1999. In appeal, it was confirmed, against which these appeals are preferred by the original plaintiff in the leading case. The parties herein below are referred in their status in the leading case in O.S No.264 of 1999. 2. The dispute is pertaining to Ext.A3 Will dated 12.7.1991 left out by T.K.Baby pertaining to plaint schedule property having an extent of seven cents. There is no much dispute that it was originally belonged to T.K.Baby. She died after seven years of the execution of Ext.A3 registered Will. The sole legatee under the Will is non else one Baby Mol ## **RSA.Nos. 911, 1013 & 1014 of 2008 7** Varghese, who is the plaintiff in the leading case. The essential questions to be addressed are:- i) Can a bequest under a registered unprivileged Will or Codicil be revoked by the burning, tearing or otherwise destroying the same by the testator or by some other person in his presence and by his direction? ii) Whether the factum of registration of unprivileged Will or Codicil would itself constitute any difference in the legal position ? If so, to what extent? iii) Whether a long delay of seven years in the destruction of a Will by the testator/testatrix would make the destruction invalid and what would be the legal consequences of long delay in the destruction of a Will or Codicil by the testator/testatrix ? 3. Both the trial court and the first appellate court found that the testatrix had executed and registered Ext.A3 Will. It was also proved as mandated under Section 68 of the Evidence Act and the mandate under Section 63 of the Indian Succession Act was also ## **RSA.Nos. 911, 1013 & 1014 of 2008 8** established. 4. The suit was dismissed by both the trial court and the first appellate court on the reason that the testatrix during her life time had revoked the Will as envisaged under Section 70 of the Indian Succession Act, 1925 ( for short, the Act) by destructing the original Will after its registration. The original Will was executed and registered on 12.7.1991. The testatrix died after seven years from the date of execution and registration of Ext A3 Will. The contention raised by the third defendant is that the Will was revoked by the testatrix one and half months before her death. If that be so, even according to the the third defendant, the Will was destructed after the lapse of seven years from the date of its execution and registration. 5. Section 70 of the Act extracted below for reference. “No unprivileged Will or Codicil, nor any part thereof, shall be revoked ## **RSA.Nos. 911, 1013 & 1014 of 2008 9** otherwise than by marriage, or by another Will or codicil, or by some writing declaring an intention to revoke the same and executed in the manner in which an unprivileged Will is herein before required to be executed, or by the burning, tearing, or otherwise destroying the same by the testator or by some person in his presence and by his direction with the intention of revoking the same. (emphasis supplied) 6. **Section 70 of the Act is so exhaustive and** **enumerates the different modes available for revoking an unprivileged Will. It includes revocation by another Will or Codicil or by a declaration in writing to revoke the earlier one. An unprivileged Will or Codicil can also be revoked by the burning, tearing, or otherwise destroying the same and it shall be done with the intention of revoking the same. The expression “with the intention of revoking the same” incorporated in Section 70 of the Act should read with** **RSA.Nos. 911, 1013 & 1014 of 2008 10** **the act of revocation of Will by the burning, tearing or otherwise destroying the same. The expression “the burning, tearing or otherwise destroying the same” really stands for complete and total destruction of earlier Will or Codicil, without leaving any evidence to show the bequest under the Will or Codicil to any of the legatees. It may be noted that Section 71 of the Act deals with effect of obliteration, interlineation or alteration in an unprivileged Will. It says that no obliteration, interlineation or alteration in an unprivileged Will will not, in any way, affect the validity of the said Will after its execution unless the words or meaning of the Will have been thereby rendered illegible or indiscernible, except in case of an alteration either by way of another Will or Codicil or alteration effected by execution in the manner required for execution of a Will or Codicil. Even in the case of obliteration, interlineation or alteration, it will not affect the validity of the Will or Codicil, unless such alteration has been executed in** ## **RSA.Nos. 911, 1013 & 1014 of 2008 11** **the manner required for execution of a Will. It is really an exception to the general rule governing other documents and the legislative intention is well clear that the Will so far it is legible and discernible, it has to be acted upon. The requirement under Section 70 should be read in consonance with the legislative intention. There is a specific and clear distinction between the first portion of Section 70 of the Act covering revocation of an unprivileged Will or Codicil by means of (1) marriage, (2) by another Will or Codicil and (3) by some writing declaring an intention to revoke, from that of the last portion dealing with** **revocation by means of, the burning, tearing or otherwise destroying the Will or Codicil with the intention of revoking the same. The last portion stands for destruction of Will or Codicil manually. When there is manual destruction, it should be with intention to revoke the earlier Will or Codicil and the destruction should be complete without leaving anything to show the bequest under the Will or Codicil. In so far as a** ## **RSA.Nos. 911, 1013 & 1014 of 2008 12** **registered Will is concerned, a manual destruction of original Will registered or a registration copy of the original either by the burning or by tearing or otherwise destroying the same manually will not affect the registration records showing its content and the bequest thereunder and it can be acted upon. Hence a manual destruction of registered unprivileged Will will not satisfy an effective revocation as mandated under** **Section 70 of the Act, though, the original or registration copy of the Will or Codicil was manually destructed or destroyed either by burning, tearing or otherwise by the testator or through somebody else under his instruction and in his presence with the intention to revoke the same. The requirement mandated under Section 70 of the Act for manual destruction is not applicable in so far as a registered Will or Codicil is concerned and it can be revoked only by the methods available under first portion of Section 70 of the Act, namely (i) by marriage (ii) by another Will or Codicil and (iii) by some writing declaring an** **RSA.Nos. 911, 1013 & 1014 of 2008 13** **intention to revoke. But in so far as an unregistered unprivileged Will is concerned, a destruction by burning or tearing or otherwise destroying the same would be a sufficient revocation as mandated under Section 70 of the Act. The manual destruction of original of the Will may be with the intention of destruction of the same by the testator. But when it was registered, the mandate of complete and total destruction has to be established and mere evidence showing the intention alone would not suffice.** The testator may have ever so many reasons for a manual destruction of original of the Will, may be with the intention to not to give any notice to any affected person thereby, viz. the legal heirs and dependents of the testator and to bring the same in secrecy till his death. 7. The learned counsel for the respondents relied on the decision drawn by the Apex Court in _**Anil Bihari Ghosh v. Latika Bala Dassi (AIR 1955 SC 566)**_ . What is involved in the said case is a registered Will and ## **RSA.Nos. 911, 1013 & 1014 of 2008 14** there is discussion with respect to the application of Section 70 of the Act in paragraph 19 of the said judgment. But no legal proposition was laid down by the Apex Court based on Section 70 of the Act. On the other hand, the application of Section 70 of the Act was rejected by the Apex Court on the reason that there is no proof to show and establish revocation of Will as mandated. It is also observed by the Apex Court in para 19 as follows: “It is open to a person who has made a will at any time to alter or to revoke it; but if he has died leaving a registered will and has not taken any tangible steps to revoke such a will, it is not enough to allege that the testator had at one time entertained the intention of doing so, because such an intention without being translated into action has no effect on the will actually left by him which must be treated as the last will and testament”. 8. In yet another decision in _**Durga Prashad vs.**_ _**Debi Charan and Others (1979) 1 SCC 61)**_ the Apex Court had considered Section 70 of the Act, but no legal ## **RSA.Nos. 911, 1013 & 1014 of 2008 15** proposition was laid down by the Apex Court based on Section 70 of the Act. What is considered by the Apex Court is the application of presumption, when the Will was found to be lost at the time of death of testator/testatrix. The question whether a registered Will can be revoked by mere burning or tearing of the original neither raised nor adjudicated by the Apex Court. 9. This Court in _**Koman Nambiar v. Lakshmikutty**_ _**Appissi (1990 Volume 1 KHC 106)**_ had the occasion to deal with the application of presumption on a lost Will. These three decisions will not render any assistance to the defendant. **==> picture [432 x 13] intentionally omitted <==** destructing the Will manually, it has no much relevance once the destruction found to be in accordance with the mandate under Section 70 of the Act and the only requirement is that it should be during the life time of testator/testatrix and it should be with the intention to revoke the same. The long delay in the **RSA.Nos. 911, 1013 & 1014 of 2008 16** matter of destruction of a Will or Codicil may be a relevant factor to adjudicate whether it was actually done by the testator/testatrix with the intention to revoke the same. 11. Since there is no valid revocation as claimed by the defendant in the leading case, the plaintiff is entitled to a decree in terms of the plaint in both the suit in O.S.No.264/1999 and O.S.No.773/2000. Thus, decree and judgment of both the Trial Court and the First Appellate Court in all the three suits are liable to be set aside. The suit in O.S.No.264 of 1999 (the leading case) and O.S.No.773 of 2000 are liable to be decreed by granting a permanent prohibitory injunction as prayed for and the connected suit in O.S.No.497 of 1999 is liable to be dismissed and I do so, by allowing these three appeals. Appeals are allowed. Decree and judgment of both the Trial Court and the First Appellate Court are hereby set aside. The suits in O.S.No.264 of 1999 and O.S.No.773 of 2000 are decreed in terms of plaint and **RSA.Nos. 911, 1013 & 1014 of 2008 17** granted the relief sought thereunder. The suit in O.S.No.497 of 1999 is dismissed. Both parties are directed to suffer their respective cost of proceedings inclusive of cost of suit and the first appeal. ## **Sd/-** **P.SOMARAJAN JUDGE** pm **// TRUE COPY// PA TO JUDGE**