Merlin Sara John v. Rachel Cheriyan and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **MONDAY, THE 20TH DAY OF MAY, 2019/30TH VAISAKHA, 1941** **RSA.No. 1099 of 2017** **AGAINST THE JUDGMENT AND DECREE DATED 31.10.2014 IN OS NO.121/2010 of SUB COURT, KOTTARAKKARA.** **AGAINST THE JUDGMENT AND DECREE DATED 31.03.2017 IN AS NO.202/2014 of ADDITIONAL DISTRICT COURT - V, KOLLAM.** **- - APPELLANT IN R.S.A. RESPONDENT NO.2 IN A.S. DEFENDANT NO.2 IN SUIT:** **MERLIN SARA JOHN,D/O. JOHN DAVID, AGED 37, PUTHEN VEEDU,NEAR BOY'S HIGH SCHOOL, VALACODE P.O, PUNALUR,KOLLAM, PIN - 691 331,NOW RESIDING AT RESIDING AT FLAT NO.803,ASTER PARAGON APARTMENTS, PADIL POST, MANGALURU- 575 007, REPRESENTED BY HER POWER-OF-ATTORNEY HOLDER JOB JOHN, S/O. LATE V.J JOHN,AGED 40, RESIDING AT FLAT NO. 803, ASTER PARAGON APARTMENTS, PADIL POST, MANGALURU - 575 007.** **BY ADVS.SRI.S.V.BALAKRISHNA IYER (SENIOR ADVOCATE) SRI.P.B.KRISHNAN, SRI.R.SURAJ KUMAR SRI.P.M.NEELAKANDAN,SRI.P.B.SUBRAMANYAN, SRI.SABU GEORGE, SRI.S.NITHAN** ## **- - RESPONDENTS IN R.S.A. APPELLANTS IN A.S. PLAINTIFFS IN SUIT :** **1 RACHEL CHERIYAN, W/O. CHERIYAN VARGHESE, AGED 68, RESIDING AT PATHIYARATHU HOUSE NO. XXXIII 703, VAYALIL, THIRUMULLAVARAM P.O, KOLLAM, PIN - 691 012.** **2 ALEYAMMA JOHNSON, W/O. JOHNSON JACOB, AGED 66, CHITTAZHIKATHU BUNGALOW, KOTTIYAM P.O, KOLLAM, PIN - 691 571.** **3 LATHA GEORGE, W/O REV.RAJU GEORGE, AGED 58, ST.THOMAS MARTHOMA CHURCH, VALAKOM, KOTTARAKKARA, PIN - 691 532.** **BY ADVS.SRI.K.S.HARIHARAPUTHRAN SRI.SAJU J. PANICKER** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 01.04.2019, THE COURT ON 20.05.2019 DELIVERED THE FOLLOWING:** RSA No.1099 of 2017 2 ## **A.HARIPRASAD, J.** **-------------------------------------R.S.A.No.1099 of 2017** **-------------------------------------Dated this the 20[th] day of May, 2019** ## **JUDGMENT** This second appeal, filed at the instance of the 2[nd] defendant in a suit for partition, raises the following substantial questions of law: I. Did the appellant succeed in proving Ext.B3 Will in terms of Section 68 of the Evidence Act, 1872 (in short, “the Evidence Act”)? II. Did the lower appellate court err in not regarding the notary public as an execution witness and fail to consider his testimony, as DW2, as sufficient compliance of Section 68 of the Evidence Act? III. Whether Saramma David, the testator in Ext.B3 Will, was in a sound disposing state of mind at the time of its execution? 2. Heard the learned senior counsel appearing for the appellant and learned counsel for the contesting respondents. 3. Facts, in nut shell, are as follows: Plaintiffs/respondents are the daughters of deceased David Solomon and Saramma David and the sisters of deceased John David. Defendants are the widow and daughter of deceased John David. Saramma David and David Solomon died intestate, according to the plaintiffs, on 18.03.2001 and 12.10.2009 respectively. The plaint schedule property originally RSA No.1099 of 2017 3 belonged to David Solomon . He executed a deed bearing No.4494 of 1969 of Punalur SRO in respect of the plaint schedule property in favour of his wife Saramma David. Thereafter, Saramma David was in exclusive possession and enjoyment of the plaint schedule property till her death. After her death, the plaintiffs and John David were in joint possession of the property till the death of John David on 03.12.2007. Subsequent to John David’s death, the plaintiffs and defendants are in joint possession and enjoyment of the property. There is a residential building and other appurtenant structures in the plaint schedule property. Despite repeated requests, the defendants were not prepared to partition the property and hence the suit. 4. Defendants 1 and 2, in their written statement, admitted the relationship between the parties. Dates of death of their predecessors-in-title are also admitted. However, they contended that Saramma David had executed, with full understanding, her last Will on 01.12.1998 bequeathing her entire right, title and interest over the plaint schedule property in favour of her only son John David, the husband of 1[st] defendant and father of 2[nd] defendant. On the death of Saramma David, the property devolved on John David and he was in possession of the same till his death. Subsequently, the defendants are in absolute possession and enjoyment of the plaint schedule property as owners thereof. Deceased John David and the defendants have effected improvements in the property and renovated the building RSA No.1099 of 2017 4 by spending more than `60,000/-.They prayed for dismissal of the suit. 5. Trial court after considering the evidence adduced in the case dismissed the suit finding that Ext.B3 Will, purported to be executed by deceased Saramma David, is a genuine document and she had executed it with full testamentary capacity. Trial court also found that Ext.B3 Will has been properly proved. 6. In the appeal preferred by the plaintiffs, the lower appellate court reversed the finding of the trial court by disbelieving Ext.A3 and a preliminary decree for partition was passed in terms of the plaint averments. 7. Since there was a stiff resistance from the side of the respondents in admitting the appeal, this Court called for the records at the time of hearing on admission and carefully perused them. After hearing the learned counsel on both sides and on a scrutiny of the records, I am of the considered view that the lower appellate court is right in decreeing the suit. But then, the reasons to be recorded therefor may be slightly different. 8. As mentioned above, there is not much of a dispute between the parties regarding the derivation of title to the property by deceased Saramma David. Only pertinent question is whether she had executed Ext.B3 Will to change the course of an intestate succession. Learned senior counsel for the appellant contended that the divergent findings regarding the execution and proof of Ext.B3 Will are matters to RSA No.1099 of 2017 5 be adjudicated in this second appeal. Whereas, learned counsel for the respondents reminded this Court of its limitation in re-appreciating the evidence and dwelling on questions of fact in a second appeal. Settled law on the point, that if appreciation of evidence by the courts below was so perverse and it led the courts to a completely erroneous finding, then this Court in a second appeal can re-appreciate the evidence, shall not be lost sight of. 9. Learned counsel for the respondents contended that the lower appellate court is perfectly right in holding that the Will was not proved in tune with Section 68 of the Evidence Act. It can be seen that two persons who witnessed the execution of Ext.B3 are Rev.Philip David and David Solomon. Undeniably, David Solomon is the husband of Saramma David and he passed away much prior to the suit. Learned senior counsel, relying on a copy of the death certificate, purportedly related to the death of Rev.Philip David, produced in this second appeal, contended that the parties were unaware of the fact that Rev.Philip David (first execution witness) had passed away prior to the trial of the case. None of the witnesses examined on the side of the appellant testified before the trial court that Rev.Philip David was no more at the time of evidence. For the first time such a contention is raised in this second appeal. 10. On the basis of the above submission, the learned senior counsel for the appellant canvassed for a remand of the case for RSA No.1099 of 2017 6 enabling the parties to follow the procedure in Section 69 of the Evidence Act for proving the Will. This submission is opposed by the learned counsel for the respondents contending that remand shall not be allowed as it is settled law that a party who had enough opportunity to adduce relevant evidence and who failed to do so cannot be afforded another opportunity, that too in a second appeal. 11. In order to buttress the above contention, reliance is placed on a judgment of this Court in **John A. Augustine v. Renjan (2016 (3) KLT 670)** wherein this Court after following a Constitution Bench decision of the Supreme Court in **A.Sankara Ramayya v. M.S.Lakshminarayanamoorthi & Others (Civil Appeal No.618 of 1960)** held thus: _“ On a close reading of R.23A of O.XLI of the Code it will be evident that, to invoke the power, vested in an appellate court, to remand a case, twin satisfactions will have to be arrived at. Firstly, the appellate court, on an analysis of the facts and on applying the principles of law, should find that the decree is to be reversed. Only after taking such a decision, the appellate court can step into the next arena. Second condition to be satisfied for invoking the power is that, the appellate court on merits, should find that a retrial is essential for the complete adjudication of the lis between the parties. Well settled is_ RSA No.1099 of 2017 7 _the proposition of law that whether the court should or should not remand a case is one of discretion. Surely, the discretion has to be exercised on sound and reasonable premises and guided by judicial principles. If only these two conditions are satisfied, a remand under O.XLI R.23A of the Code could be legally justified. Merely on establishing any one of the conditions mentioned above, an appellate court shall not remand a case to the lower court. In other words, these twin conditions are conjunctive and not disjunctive."_ This Court also took note of the observation by the Constitution Bench that a trial _de novo_ , after setting aside a final order passed by the court of first instance, may therefore be made only in exceptional circumstances where there has been no real trial or where allowing the order to stand would result in an abuse of the process of court. By no stretch of reasoning, it can be said in this case that unless the matter is remanded to the trial court for affording the appellant another opportunity to adduce evidence, there will be an abuse of the process of court. Likewise, in spite of having a fair opportunity to adduce the best evidence in order to prove the execution of Ext.B3 Will in terms of Section 68 of the Evidence Act, the appellant did not avail of it. Hence the request for a remand is worthy only to be turned down. 12. Status of DW2, as an attestor or not, is a point of serious RSA No.1099 of 2017 8 dispute. According to the learned senior counsel, the lower appellate court erred in not treating DW2 as a witness who attested Ext.B3. On a close look at Ext.B3 Will, it can be seen that Rev.Philip David and David Solomon have been described as execution witnesses and signatures can be seen against their names with date. Beneath those signatures, DW2 has written thus: _“Executed and signed before me by the deponent Saramma David in the presence of the witnesses on this the 1[st] day of December 1998 at my office at Punalur.”_ At the foot of this writing, DW2 has signed and affixed his notary seal. It is to be noted that Ext.B3 Will is a document type written on two pages. On the first page also one can find the signature and seal of DW2 on the left hand side and the alleged signature of Saramma David on the right hand side. The certification by DW2 on the 2[nd] page, quoted above, will certainly indicate that he did not intend to sign the document as an execution witness. Actually, he was authenticating the document in the capacity as notary. DW2, when cross-examined, expressed his inability to distinguish between an executant and a deponent. It should be noticed from his statement, he started law practise in the year 1970. According to him, Saramma David was the executant and deponent. On a careful perusal of his cross-examination, it can be seen that DW2 never intended to act as an execution witness, but he only took part in its preparation and authentication. When he was re-examined, he RSA No.1099 of 2017 9 stated that what he intended by the writing at the foot of the 2[nd] page of Ext.B3 was only a certification of the fact that Saramma David and witnesses signed the Will in his presence. 13. Section 63 of the Indian Succession Act, 1925 speaks about the mode of execution of unprivileged Wills. It reads thus: _“_ _**Execution of unprivileged Wills.** -Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his Will according to the following rules:-_ _(a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction._ _(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will._ _(c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or the signature of such other_ RSA No.1099 of 2017 10 _person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.”_ 14. Section 63(c) needs a special mention as it speaks about the form of attestation required for validating a Will. The word “attestation” has not been separately defined in the Indian Succession Act. The definition of the same can be seen in Section 3 of the Transfer of Property Act, 1882. Section 63(c) of the Indian Succession Act is a modified version of the definition of “attestation” in Section 3 of the Transfer of Property Act. The general expression “instrument” used in Section 3 has been specifically changed to Will in Section 63(c). In essence, both the provisions speak about the essential acts of attestation and Section 63(c) of the Succession Act is specific about a Will. 15. It has been held in **Lisamma v. Saramma (2017(2) KLT 1084)** that a person signing a document must have _animo attestandi_ in order to acquire the status of an attesting witness. In this case, on a careful reading of the testimony of DW2, it can be seen that he never intended to sign Ext.B3 Will as an attestor, but he only notarized the document in the capacity as a notary public authorised to do so under the provisions of the Notaries Act, 1952. On a careful consideration of his entire evidence, it can be seen that DW2 cannot be regarded as an RSA No.1099 of 2017 11 attesting witness. Therefore, the lower appellate court is correct in holding that Ext.B3 Will was not proved in terms of Section 68 of the Evidence Act. Even at the time of trial, the status of DW2 as an attesting witness was specifically challenged by the plaintiffs. Yet, the appellant did not take any step to find out whether the first execution witness, viz., Rev. Philip David, was alive or not. This wanton dereliction on the appellant’s side cannot be ignored or condoned in a second appeal. Therefore the lower appellate court is right in holding that Ext.B3 Will was not proved by examining any of the attesting witnesses or proving it in accordance with Section 69 of the Evidence Act. 16. Since this Court finds that Ext.B3 Will was not proved in accordance with Section 68 of the Evidence Act, the question of testamentary capacity of deceased Saramma David is only of academic value. To prove her mental capacity DWs 1 and 3 were examined. Serious challenge was made against their testimony by the learned counsel for the respondents. The lower appellate court found that deceased Saramma David was not proved to be of sound disposing state of mind. I am of the definite view that the question about testamentary capacity of a testator will arise only on proof of a Will in accordance with the provisions of law. As the appellant faltered the first step, there is no point in going to the next step for determining the testamentary capacity of the testator. RSA No.1099 of 2017 12 17. Having regard to the facts and circumstances and legal provisions as stated above, I am of the view that the lower appellate court is legally correct in finding against Ext.B3 Will as the last Will and testament of deceased Saramma David. So much so, the testamentary capacity of deceased Saramma David is of no consequence in deciding this case. I can only find the substantial questions of law raised above against the appellant, which obviously results in the dismissal of appeal. In the result, the appeal is dismissed. All pending interlocutory applications will stand dismissed. **A.HARIPRASAD, JUDGE.** cks