E.N. Jayaprakash v. E.N. Chandrika and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 1ST DAY OF AUGUST 2012/10TH SRAVANA 1934 CRP.No. 423 of 2010 ( ) ----------------------EP NO.167/2003 IN OS.752/1999 of ADDL.MUNSIFF COURT.,KOTTAYAM REVISION PETITIONER(S)/1ST JUDGMENT DEBTOR: ------------------------------------------ E.N.JAYAPRAKASH, S/O.NARAYANAN, AGED 53 YEARS, ILLATHUKALAM HOUSE, CHINGAVANAM KARA NATTAKOM VILLAGE, CHINGAVANAM P.O. BY ADVS.SRI.PHILIP T.VARGHESE SRI.THOMAS KACHIRAMATTOM RESPONDENT(S)/ADDL.DECREE HOLDER AND ADDL.JUDGMENT DEBTORS 2 TO 5: ------------------------------------------------------- 1. E.N.CHANDRIKA,D/O.NARAYANAN, AGED 56YEARS ILLATHUKALAM HOUSE, CHINGAVANAM KARA, NATTAKOM VILLAGE, CHINGAVANAM PO-686 531. 2. E.N.MOHANAN, S/O.NARAYANAN, AGED 60 YEARS ELLATHUKALATHIL CHEMPITHARACHIRAYIL VETTITHRARA PALLAM PO.KOTTAYAM 686 007. 3. E.N.VIJAYAN, S/O.NARAYANAN, AGED 58 YEARS ILLATHUKALAM HOUSE, CHINGAVANAM KARA NATTAKOM VILLAGE, CHINGAVANAM PO 686 531. 4. E.N.SOMAN, S/O.NARAYANAN, AGED 50 YEARS ILLATHUKALAM HOUSE, CHINGAVANAM KARA NATTAKOM VILLAGE, CHINGAVANAM PO 686 531. 5. E.N.RAJAN,S/O.NARAYANAN, AGED 48 YEARS ILLATHUKALAM HOUSE, CHINGAVANAM KARA NATTAKOM VILLAGE, CHINGAVANAM PO 686 531. BY ADV. SRI.ABRAHAM GEORGE JACOB THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 01-08-2012, ALONG WITH RSA. 474/2012 AND RSA. 606/2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **THOMAS P. JOSEPH, J.** ## **-------------------------------------C.R.P.No.423 of 2010, C.M.Appln.No.445 of 2012 in R.S.A. No.474 of 2012, C.M.Appln.No.527 of 2012 in R.S.A. No.606 of 2012 & R.S.A.Nos.474 & 606 of 2012** **-------------------------------------Dated this the 1[st] day of August, 2012.** ## **COMMON ORDER** The parties to these proceedings are the same and the subject matter of the litigation is also substantially the same. Hence the civil revision and the applications are being disposed of by a common order. 2. The civil revision arises from the order of learned Additional Munsiff, Kottayam in E.P.No.167 of 2003 in O.S.No.752 of 1999. The two points decided by the learned Munsiff are whether the decree on the counter claim in O.S.No.752 of 1999 is a nullity on account of death of the decree holder (allegedly) on 28.03.2002 and whether due execution of Ext.A1, Will No.121 of 1999 is proved? The questions were answered in favour of the respondents in C.R.P.No.423 of 2010. That order is under challenge in the civil revision. 3. R.S.A. No.474 of 2012 arises from the judgment and decree in A.S.No.407 of 2007 of learned Additional District Judge, Kottayam confirming the judgment and decree in O.S.No.179 of 2005 of learned Additional Munsiff, Kottayam. R.S.A.No.606 of 2012 arises from the judgment and decree in A.S.No.408 of 2007 confirming the judgment and decree in O.S.No.308 of C.R.P.No.423 of 2010, C.M.Appln.No.445 of 2012 in R.S.A. No.474 of 2012, C.M.Appln.No.527 of 2012 in R.S.A. No.606 of 2012 & R.S.A.Nos.474 & 606 of 2012 2 2005 , both of the same courts referred to above. Since the said appeals are preferred with a delay of 1007 days, petitioners/appellants have filed C.M.Appln. Nos.445 of 2012 and 527 of 2012 for condonation of that delay. 4. The late Narayanan, the father of the parties hereto and to whom the properties belonged, executed Ext.B1, Will (marked in O.S.No.179 of 2005) in the year, 1988. That was revoked by Ext.B2, Will of the year, 1994. Ext.B2, Will was cancelled by Ext.B3, Will, also of the year, 1994. Later, Narayanan is said to have executed Ext.A1, Will No.121 of 1999 as per which the subject matter of the dispute in these cases was bequeathed to the 1[st] respondent in C.R.P.No.423 of 2010 and respondents 4 and 5 in R.S.A.No.474 of 2012. 5. The earliest of the litigation – O.S.No.752 of 1999 was commenced by the petitioner in the civil revision who is the 1[st] appellant in the appeals. He filed O.S.No.752 of 1999 in the Additional Munsiff's Court against his father, the late Narayanan for a decree for prohibitory injunction against forcible eviction on the premise that he is in possession of the shop room referred to above (which is the subject matter of Ext.A1, Will No.121 of 1999 and bequeathed to the 1[st] respondent in C.R.P.No.423 of 2010). The late Narayanan resisted that suit contending that he is in possession of the shop room and that petitioner in the civil revision/1st appellant in the appeals was only assisting him. He stated that he had executed Will No.121 of 1999 and made a counter claim. 3 C.R.P.No.423 of 2010, C.M.Appln.No.445 of 2012 in R.S.A. No.474 of 2012, C.M.Appln.No.527 of 2012 in R.S.A. No.606 of 2012 & R.S.A.Nos.474 & 606 of 2012 O.S.No.752 of 1999 was dismissed and the counter claim filed by the late Narayanan for eviction of the petitioner/1[st] appellant with recovery of damages for unlawful use and occupation was decreed in favour of the late Narayanan. Petitioner/appellant filed A.S.No.74 of 2002 challenging dismissal of O.S.No.752 of 1999 and the decree on the counter claim. While that appeal was pending before the first appellate court, petitioner/1[st] appellant filed I.A.No.890 of 2006 for a declaration that the decree in O.S.No.752 of 1999 is a nullity since Narayanan had expired on 28.03.2002 (while the trial court disposed of the suit and the counter claim therein on 09.04.2002) and that the decree in favour of the deceased defendant (Narayanan) is a nullity. In answer to that contention, the 1[st] respondent and others who were the respondents in A.S.No.74 of 2002 contended that the trial court had heard O.S.No.752 of 1999 and the counter claim on 30.03.2002 and the death of Narayanan was after that, on 30.03.2002 and hence the decree in the suit and the counter claim are valid. The first appellate court after conducting an enquiry entered a finding that Narayanan died on 30.03.2002 on which day the suit and the counter claim in O.S.No.752 of 1999 were heard and hence the decree is not a nullity. Later, A.S.No.74 of 2002 was dismissed for default. An attempt was made by the petitioner/1[st] appellant to resurrect that appeal. But he did not succeed. Thus dismissal of O.S.No.752 of 1999 and the decree on the counter claim became final. The finding on I.A.No.890 of 2006 also became final. C.R.P.No.423 of 2010, C.M.Appln.No.445 of 2012 in R.S.A. No.474 of 2012, C.M.Appln.No.527 of 2012 in R.S.A. No.606 of 2012 & R.S.A.Nos.474 & 606 of 2012 4 6. The 1[st] respondent filed E.P.No.167 of 2003 for execution of the decree on the counter claim in O.S.No.752 of 1999 on the strength of Ext.A1, Will No.121 of 1999. There, again, the petitioner/1[st] appellant raised a contention that since Narayanan died on 28.03.2002, the decree on the counter claim is a nullity and hence not enforceable. Since the 1[st] respondent claimed right over the counter claim decree schedule property on the strength of Ext.A1, Will No.121 of 1999, the petitioner/1[st] appellant contended that the Will is not duly executed by the late Narayanan. 7. The 1[st] respondent in C.R.P.No.423 of 2010 and the 5[th] respondent in the second appeals filed O.S.No.179 of 2005 against the petitioner/1[st] appellant and one Shylaja for a decree for prohibitory injunction. There, the 1[st] respondent in the civil revision and the 5[th] respondent in the second appeals claimed title and possession of the suit property as per Ext.A1, Will No.121 of 1999. The petitioner/1[st] appellant and Shylaja who were the defendants in O.S.No.179 of 2005 filed O.S.No.308 of 2005 against the 1[st] respondent in the civil revision and the 5[th] respondent in the second appeals demanding partition. They denied the due execution of Ext.A1, Will No.121 of 1999 and claimed that the properties are partiable since they have inherited the same from the late Narayanan. C.R.P.No.423 of 2010, C.M.Appln.No.445 of 2012 in R.S.A. No.474 of 2012, C.M.Appln.No.527 of 2012 in R.S.A. No.606 of 2012 & R.S.A.Nos.474 & 606 of 2012 5 8. O.S.Nos.179 of 2005 and 308 of 2005 were tried together. The 1[st] respondent in the civil revision and the 5[th] respondent in the second appeals produced Ext.A1, Will No.121 of 1999 and examined PW2 who according to them is one of the attesting witnesses in Ext.A1. Ext.A2 is the certified copy of deposition of the late Narayanan as the defendant/counter claim plaintiff in O.S.No.752 of 1999. 9. The learned Munsiff found in favour of due execution of Ext.A1, Will No.121 of 1999 and granted a decree in favour of the 1[st] respondent in the civil revision and the 5[th] respondent in the appeals, in O.S.No.179 of 2005. In view of the finding regarding the due execution and attestation of Ext.A1, Will No.121 of 1999, O.S.No.308 of 2005 was dismissed. 10. The common judgment and decree in O.S.Nos.179 of 2005 and 308 of 2005 were challenged in A.S.Nos.407 of 2007 and 408 of 2007 which as aforesaid the learned Additional District Judge by a common judgment dismissed from which the Second Appeals arise. 11. The learned counsel for the petitioner in the civil revision contends that the finding of the executing court that Narayanan died only on 30.03.2002 is not correct and that at any rate, there is no evidence to show that the death was after hearing of O.S.No.752 of 1999 and the counter claim concluded. It is C.R.P.No.423 of 2010, C.M.Appln.No.445 of 2012 in R.S.A. No.474 of 2012, C.M.Appln.No.527 of 2012 in R.S.A. No.606 of 2012 & R.S.A.Nos.474 & 606 of 2012 6 argued by the learned counsel that the finding entered by the learned Munsiff in O.S.Nos.179 of 2005 and 308 of 2005 as to the due execution of Ext.A1 is not correct. The learned counsel has invited my attention to Ext.A2, copy of deposition of Narayanan as DW1 in O.S.No.752 of 1999 to contend that the 2[nd] attestor in Ext.A1 had not even signed that Will and that at any rate, the suit property in O.S.No.179 of 2005 is not included in the said Will and allotted to the 1[st] respondent. The learned counsel also argued that the evidence of PW2 in O.S.Nos.179 of 2005 and 308 of 2005 as to the execution of Ext.A1 should not have been accepted since he is the driver of the late Narayanan and had taken a leading role in getting the Ext.A1 executed. According to the learned counsel, the evidence given by DHW No.3, claimed to be the first attesting witness in Ext.A1 in the course of the enquiry in E.P.No.167 of 2003 would show that the late Narayanan had not subscribed his signature to Ext.A1. The learned counsel has placed reliance on the decisions in **Girja Datt Singh v. Gangotri Datt Singh (AIR 1955 SC 346), M.S.Thanigachala Pillai v. Rukmani Ammal and others (AIR 1989 Madras 99), Illyas and others v. Badshah alias Kamla (AIR 1990 Madhya Pradesh 334)** and **K.M.varghese v. K.M.Oommen (AIR 1994 Kerala 85)** (paragraph 45) to contend that there is no reliable evidence in proof of due execution of Ext.A1. C.R.P.No.423 of 2010, C.M.Appln.No.445 of 2012 in R.S.A. No.474 of 2012, C.M.Appln.No.527 of 2012 in R.S.A. No.606 of 2012 & R.S.A.Nos.474 & 606 of 2012 7 12. The learned counsel further contended that the delay in filing the second appeals is properly explained in the affidavits filed by the 1[st] petitioner in C.M.Appln.Nos.445 of 2012 and 527 of 2012. The learned counsel requested that having regard to the facts and circumstances of the case, the delay may be condoned and the second appeals may be admitted to file. 13. The learned counsel for the 1[st] respondent in the civil revision and respondents 3 to 5 in the second appeals contended that none of the issues raised for decision in the civil revision and the second appeals do arise for a decision. It is pointed out by the learned counsel that the question whether the decree in the suit and counter claim in O.S.No.752 of 1999 is a nullity was adjudicated and decided by the first appellate court on I.A.No.890 of 2006 in A.S.No.74 of 2002 (arising from the judgment and decree in O.S.No.752 of 1999) and hence it was not even necessary for the executing court (in O.S.No.752 of 1999) to have undertaken the exercise of deciding whether the decree is null and void as pleaded by the petitioner/1[st] appellant. It is contended that so far as execution of Ext.A1, Will No.121 of 1999 is concerned, that question also is concluded by the judgment and decree in O.S.Nos.179 of 2005 and 308 of 2005. The learned counsel submits that portion of deposition read by the learned counsel for the petitioner/1[st] appellant from Ext.A2, copy of deposition of late Narayanan in O.S.No.752 of 1999 is not concerning Ext.A1, Will as is clear from the statement he has made in the said deposition. It is C.R.P.No.423 of 2010, C.M.Appln.No.445 of 2012 in R.S.A. No.474 of 2012, C.M.Appln.No.527 of 2012 in R.S.A. No.606 of 2012 & R.S.A.Nos.474 & 606 of 2012 8 contended by the learned counsel that there is no reason to disbelieve the evidence of PW2 in O.S.Nos.179 of 2005 and 308 of 2005. It is also contended by the learned counsel that so far as due execution of Ext.A1, Will is concerned, proof with arithmetical precision is not required and that the proof required is as of any other document. There is no suspicious circumstance surrounding the due execution of Ext.A1. It is also pointed out by the learned counsel that the testator himself had occasion to support Ext.A1 as DW1 in O.S.No.752 of 1999 as seen from Ext.A2. 14. So far as the delay involved in filing the second appeals is concerned, the learned counsel submitted that the huge delay is not explained. It is pointed out that after the civil revision came up for admission in this Court, taking a clue from the discussion that occurred in the course of hearing of the civil revision on admission the appellants have chosen to file the second appeals. It is contended that if the 1[st] appellant in the appeals could afford to file the civil revision on time there was no reason why he could not file the second appeals also on time. Hence it is prayed that the applications for condonation of delay may not be allowed. 15. The first question is whether the delay in filing the second appeals is to be condoned. In the affidavits in support of the applications the 1[st] appellant says that the first appellate court disposed of the appeals on C.R.P.No.423 of 2010, C.M.Appln.No.445 of 2012 in R.S.A. No.474 of 2012, C.M.Appln.No.527 of 2012 in R.S.A. No.606 of 2012 & R.S.A.Nos.474 & 606 of 2012 9 18.02.2009, the second appeals ought to have been filed within 90 days of receipt of the copy of the judgment, but the 1[st] appellant could not entrust his advocate clerk with the responsibility to apply for certified copy of the judgment and decree on time. That was because the wife of the 1[st] appellant was bed ridden due to rheumatism from 18.01.2009 to 05.03.2012. The 1st appellant was compelled to stay always with her to look after her. Since the children are minors, the 1[st] appellant could not instruct them to ask the Advocate Clerk to apply for certified copy of judgment and decree of the first appellate court. 16. The second appeals are filed not merely by the 1[st] appellant and by other persons also on 06.03.2012. It must be noticed that the 1[st] appellant in the second appeals as petitioner filed C.R.P.No.423 of 2010 on 10.08.2010. If the 1[st] appellant was capable of obtaining the certified copy of the impugned order in E.P.No.167 of 2003 in O.S.No.752 of 1999 and filing the civil revision on 10.08.2010, I find it difficult to think that the circumstances stated in the affidavits prevented him from obtaining the certified copy of the judgment and decree of the 1[st] appellate court in A.S.Nos.407 and 408 of 2007. I must also notice that illness of the wife pleaded by the 1[st] appellant is rheumatism and that too, allegedly in a bed ridden stage from 18.01.2009 to 05.03.2012. No medical certificate is also produced to support the said plea. C.R.P.No.423 of 2010, C.M.Appln.No.445 of 2012 in R.S.A. No.474 of 2012, C.M.Appln.No.527 of 2012 in R.S.A. No.606 of 2012 & R.S.A.Nos.474 & 606 of 2012 10 17. The Supreme Court in **State of Karnataka v. Y.Moideen Kunhi (dead) by Lrs. and others ((2009) 13 SCC 192)** has held that when the delay involved is inordinate, a stricter approach must be taken. That is because, by condoning the inordinate delay the court is taking away a right vested with the respondents by the judgment and decree becoming final. 18. Having regard to the various circumstances I am not inclined to think that petitioners/appellants have properly explained the huge delay in filing the second appeals. As such the request for condonation of delay cannot be allowed. 19. I shall first then to the decision of learned Munsiff in E.P.No.167 of 2003 in O.S.No.752 of 1999. It is not disputed that the late Narayanan (said to be the executant of Ext.A1, Will) has obtained a decree on the counter claim against the petitioner in the civil revision for his eviction with liability to pay damages for usage and occupation. The judgment and decree in O.S.No.752 of 1999 were passed on 09.04.2002. Petitioner contended that the late Narayanan expired on 28.03.2002. It is not disputed that O.S.No.752 of 1999 was heard on 30.03.2002. According to the 1[st] respondent in the civil revision and respondents 3 to 5 in the second appeals, the death of Narayanan was after C.R.P.No.423 of 2010, C.M.Appln.No.445 of 2012 in R.S.A. No.474 of 2012, C.M.Appln.No.527 of 2012 in R.S.A. No.606 of 2012 & R.S.A.Nos.474 & 606 of 2012 11 hearing of the suit and counter claim on 30.03.2002 and hence the question of abatement or impleadment of the legal representatives of the late Narayanan as to parties to the counter claim in O.S.No.752 of 1999 did not arise. 20. True that on the question whether the decree was a nullity or not, it is open to the executing court to enquire into. But, a rowing enquiry in that regard is not contemplated. It is admitted that in A.S.No.74 of 2002 filed by the petitioner in the civil revision and the 1[st] appellant in the second appeals challenging the judgment and decree in the suit and counter claim in O.S.No.752 of 1999, he had filed I.A.No.890 of 2006 challenging the judgment and decree of the trial court as a nullity on the same ground. Learned counsel for the petitioner pointed out that even the 4[th] respondent in the second appeal when examined as PW1 in O.S.Nos.179 of 2005 and 308 of 2005 admitted that Narayanan died on 28.03.2002. 21. But I must notice that the decision on I.A.No.890 of 2006 in A.S.No.74 of 2002 that the death was on 30.03.2002 on which day the hearing of O.S.No.752 of 1999 concluded and hence the decree in the suit and counter claim in O.S.No.752 of 1999 are not null and void, has become final. That decision would bind the parties hereto as res judicata. Therefore, the executing court was not required to conduct an enquiry in E.P.No.167 of 2003 (in O.S.No.752 of 1999) whether the decree sought to be executed is null and void. C.R.P.No.423 of 2010, C.M.Appln.No.445 of 2012 in R.S.A. No.474 of 2012, C.M.Appln.No.527 of 2012 in R.S.A. No.606 of 2012 & R.S.A.Nos.474 & 606 of 2012 12 The finding of the executing court though, in favour of the 1[st] respondent in the civil revision and respondents 3 to 5 in the second appeals, is really redundant in view of the finality attached to the decision on I.A.No.890 of 2006 in A.S.No.74 of 2002. Therefore, on whatever ground it be, the petitioner in the civil revision and the appellants in the second appeals cannot now urge that the decree in the suit and counter claim in O.S.No.752 of 1999 are a nullity. That dispute has to end by the decision on I.A.No.890 of 2006, the subsequent dismissal of A.S.No.74 of 2002 for default and, thereby the judgment and decree in the suit and counter claim in O.S.No.752 of 1999 becoming final. 22. Then the next question is as to due execution of Ext.A1. There also, the executing court has conducted an enquiry by examining the attesting witness and the profounder of the Will. 23. It is relevant to note that the same question arose for a decision in O.S.Nos.179 of 2005 and 308 of 2005. There the attesting witness was examined as PW2. Ext.A2 is the copy of the deposition of the late Narayanan as DW1 in O.S.No.752 of 1999. C.R.P.No.423 of 2010, C.M.Appln.No.445 of 2012 in R.S.A. No.474 of 2012, C.M.Appln.No.527 of 2012 in R.S.A. No.606 of 2012 & R.S.A.Nos.474 & 606 of 2012 13 24. PW2 admittedly was the driver of the late Narayanan. He has deposed that he saw the late Narayanan executing Ext.A1, Will. Himself and other attestor in Ext.A1 (one Sreenivasan) signed Ext.A1 as witness in the presence of the said Narayanan. 25. In Ext.A2, the copy of the deposition of the late Narayanan as DW1 in O.S.No.752 of 1999 he referred to his executing Ext.A1, Will and registering the same ( as document No.121 of 1999). 26. The learned counsel for the petitioner in the civil revision and the appellants in the second appeals has invited my attention to the cross examination of the late Narayanan as seen from Ext.A2. There, he is seen to have told the court: “വ�ല�ത�� ഞ�ന എഴ���യ�ര�ന�. ഇവ�ട� വ�സ��ര�ച ജ��സ�ട� സ�ക�യ�യ� വച�. രണ�മട� ആള വന�ര�ന�. ഒപ�ട�ല. വ�ല�ത�ത�ക�ര� ഈ ടകട��� വ�ദ�കല.” 27. The argument of the learned counsel for the petitioner/appellants, referring to the above deposition of the late Narayanan in Ext.A2 is two pronged; that the 2nd attestor to Ext.A1 had not attested the document, at any rate, in the presence of the late Narayanan and secondly, the building which is the subject matter of O.S.No.179 of 2005 is not included in Ext.A1, Will. C.R.P.No.423 of 2010, C.M.Appln.No.445 of 2012 in R.S.A. No.474 of 2012, C.M.Appln.No.527 of 2012 in R.S.A. No.606 of 2012 & R.S.A.Nos.474 & 606 of 2012 14 28. The learned counsel for the 1[st] respondent in the civil revision and respondents 3 to 5 in the second appeals contends that the said statement of the late Narayanan in Ext.A2 was not with reference to Ext.A1, that he had also executed Exts.B1, B2 and B4, Wills, the reference above extracted could be to those Wills and further that the statement of the late Narayanan in Ext.A2 that, “ വ�ല�ത�ത�ക�ര� ഈ �ട�കടകട��� വ�ദ�കല.” refers to the plaintiff in O.S.No.752 of 1999 who is the petitioner in the civil revision and the 1[st] appellant in the second appeals. 29. I have referred above the deposition of the late Narayanan in Ext.A2. He states that Jose who was examined as witness (in O.S.No.752 of 1999) was his driver; the second man had come but had not signed. True that the statement originates from the statement that the late Narayanan had executed the Will. Since the late Narayanan is no more, the question of a further cross examination of the late Narayanan at this stage to clarify the ambiguity if any in his statement does not arise. Therefore, what is possible is only to understand the true intend of what the late Narayanan has stated in Ext.A2. C.R.P.No.423 of 2010, C.M.Appln.No.445 of 2012 in R.S.A. No.474 of 2012, C.M.Appln.No.527 of 2012 in R.S.A. No.606 of 2012 & R.S.A.Nos.474 & 606 of 2012 15 30. True that he stated that Jose was cited as a witness. Certainly 'Jose' referred to by the late Narayanan in Ext.A2 is not referring to the witness in Ext.A1. In Ext.A1, the 1[st] attesting witness is Joseph S/o.Joseph, Karimbumtharayil while PW3 in O.S.No.752 of 1999 is M.I.Jose S/o.Issac. 31. Then the next question is whether the statement of the late Narayanan in Ext.A2 that “the second man had come but had not signed” refers to the 2[nd] witness in Ext.A1. On reading the cross examination of the late Narayanan in Ext.A2 as a whole, I find myself unable to conclude that the reference is to the 2[nd] attesting witness in Ext.A2. I must also notice that the late Narayanan had, before Ext.A1 executed Exts.B1, B2 and B3, Wills. 32. Moreover, it is seen from Ext.A1 that two witnesses have attested that document. Therefore, it is clear that the reference to the 2[nd] man in the cross examination of the late Narayanan extracted above from Ext.A2 is not relating to the 2[nd] witness in Ext.A1. 33. PW2, the 1[st] attestor in Ext.A1 has given evidence in O.S.Nos.179 of 2005 and 308 of 2005 that he witnessed the due execution and attestation of Ext.A1. He has referred to the relevant aspects required to prove the due execution and attestation of Ext.A1 as per Sec.63(c) of the Indian Succession Act. 34. The challenge to the evidence of PW2 is on the ground that he is the driver of the late Narayanan. I am not inclined to think that being the driver C.R.P.No.423 of 2010, C.M.Appln.No.445 of 2012 in R.S.A. No.474 of 2012, C.M.Appln.No.527 of 2012 in R.S.A. No.606 of 2012 & R.S.A.Nos.474 & 606 of 2012 16 of the late Narayanan is either a disqualification or, shows his interestedness in the execution of Ext.A1. He being the driver of the late Narayanan was the probable witness to witness execution of Ext.A1 by his master. 35. My attention is drawn by the learned counsel for petitioner/appellants to the deposition of DHW3 (in the course of enquiry in E.P.No.167 of 2003 in O.S.No.752 of 1999. The learned counsel has given me a copy of deposition of that witness. He was asked whether he saw Narayanan signing the Will. He answered in the negative. But, in the proof affidavit of the said witness, he stated in specific words as to the due execution and attestation of the Will. 36. I must notice that even when an attesting witness has denied attesting the Will as required under law, it is not as if the court is helpless to find in favour of due execution and attestation having regard to the document itself and the attending circumstances. Ext.A1 shows that DHW3 in E.P.No.167 of 2003 in O.S.No.752 of 1999 is an attesting witness in Ext.A1 and has signed the document. I also referred to his statement in the proof affidavit as to the due execution and attestation of the Will. It is clarified in his re-examination that what he stated in the proof affidavit is correct. Hence the stray statement in cross examination cannot be made use of to say that DHW3 (in E.P.No.167 of 2003 in O.S.No.752 of 1999) has not witnessed the late Narayanan executing Ext.A1, Will. 37. In O.S.Nos.179 of 2005 and 308 of 2005 there is already a finding C.R.P.No.423 of 2010, C.M.Appln.No.445 of 2012 in R.S.A. No.474 of 2012, C.M.Appln.No.527 of 2012 in R.S.A. No.606 of 2012 & R.S.A.Nos.474 & 606 of 2012 17 as to the due execution and attestation of Ext.A1 and so far as that finding stand, the executing was not even required to go into the question whether Ext.A1 is duly executed and attested. 38. I must also notice that as held in **H. Venkatachala Iyengar v. B.N.Thimmajamma (AIR 1959 SC 443)** as in the case of proof of other documents, so in the case of proof of Wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of satisfaction of the prudent mind in such matters. 39. The learned counsel has invited my attention to the decisions which I have referred to above. Those decisions on the facts and evidence of the case do not have any bearing in this case. 40. The learned counsel also argued that the execution of Ext.A1 is surrounded by suspicious circumstances. But I do not find any suspicious circumstances as understood by law as to the due execution and attestation of the Will. This Court in **Pappoo v. Kuruvilla (1994 (2) KLT 278)** has held that a circumstance will be suspicious only when in the normal course one is not expected to do in that way. No such situation arises in this case. 41. It is argued by the learned counsel that the entire extent of property referred to in Ext.A1, Will did not belong to the late Narayanan. That however, is not a matter to be decided in these proceedings. C.R.P.No.423 of 2010, C.M.Appln.No.445 of 2012 in R.S.A. No.474 of 2012, C.M.Appln.No.527 of 2012 in R.S.A. No.606 of 2012 & R.S.A.Nos.474 & 606 of 2012 18 42. Having heard the learned counsel on both sides I find no reason to interfere with the order passed by the executing court in E.P.No.167 of 2003 in O.S.No.752 of 1999 on the points decided by the executing court. Resultantly, i. C.R.P.No.423 of 2010 is dismissed. ii. C.M.Appln.No.445 of 2012 in R.S.A.No.474 of 2012 is dismissed. Consequently R.S.A.No.474 of 2012 is dismissed as time barred. iii. C.M.Appln.No.527 of 2012 in R.S.A.No.606 of 2012 is dismissed. Consequently R.S.A.No.606 of 2012 is dismissed as time barred. iv. No cost. All pending interlocutory applications will stand dismissed. **THOMAS P.JOSEPH, Judge.** **cks**