N. Raveendranath & N. Gopalakrishnan v. Sarala N & Sreedevi Rajagopal

RSA.No.132/2024 1 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN ``` ``` THURSDAY, THE 21[ST] DAY OF MARCH 2024 / 1ST CHAITHRA, 1946 RSA NO. 132 OF 2024 ``` ``` AGAINST THE DECREE AND JUDGMENT DATED 25.07.2023 IN AS NO.25 OF 2017 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - II, NORTH PARAVUR ARISING OUT OF THE DECREE AND JUDGMENT DATED 29.08.2016 IN OS NO.329 OF 2013 OF ADDITIONAL SUB COURT,NORTH PARAVUR ``` ## **`APPELLANTS/APPELLANTS NOS.1 AND 2/PLAINTIFF NOS.1 & 2:`** - **`1 N. RAVEENDRANATH, AGED 72 YEARS S/O. LATE NANAPPAN NAIR, VAZHAKULATH VEEDU, NEDUMBASSERY VILLAGE, ERNAKULAM, PIN – 683585.`** - **`2 N GOPALAKRISHNAN, AGED 68 YEARS S/O. LATE NANAPPAN NAIR, VAZHAKULATH VEEDU, NEDUMBASSERY VILLAGE, REP. BY HIS POWER OF ATTORNEY HOLDER AND BROTHER N. RAVEENDRANATH, S/O. LATE NANAPPAN NAIR, VAZHAKULATH VEEDU, NEDUMBASSERY VILLAGE, PIN – 683585.`** - **`BY ADVS. A.BALAGOPALAN A.RAJAGOPALAN M.N.MANMADAN P.SEENA`** ## **`RESPONDENTS/RESPONDENT NOS.1 & 2:`** - **`1 SARALA N, AGED 63 YEARS D/O. LATE NANAPPAN NAIR, VAZHAKULATH VEEDU, NEDUMBASSERY VILLAGE, ERNAKULAM DISTRICT, PIN – 683585.`** - **`2 SREEDEVI RAJAGOPAL, AGED 59 YEARS D/O. LATE NANAPPAN NAIR, VAZHAKKULATH VEEDU, NEDUMBASSERY VILLAGE, ER NOW RESIDING AT EAST KADUNGALLUR, MUPPATHADAM P.O. ERNAKULAM. PIN – 683110.`** ``` THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ``` ``` ON 13.03.2024, THE COURT ON 21.03.2024 DELIVERED THE FOLLOWING: ``` RSA.No.132/2024 2 _**“C.R”**_ ## _**A. BADHARUDEEN, J.**_ ## **-----------------------------------------------------** R.S.A. No.132 of 2024 **-----------------------------------------------------** Dated this the _21[st]_ day of March, 2024 ## _**J U D G M E N T**_ Plaintiffs in O.S.No.329/2013 on the files of Additional Sub Court, North Parvur have filed this appeal challenging decree and judgment in the above case dated 29.08.2016 as confirmed by the verdict dated 25.07.2023 in A.S.No.25/2017 on the files of Additional District Court, North Paravur. Respondents are defendants 1 and 2. 2. Heard the learned counsel for the appellants/plaintiffs on admission. Perused the relevant documents including copy of the Will deed placed by the learned counsel for the appellants. 3. I shall refer the parties in this Second Appeal as to their status before the trial court as `plaintiffs' and `defendants' hereinafter for convenience. 4. Plaintiffs filed the Suit to get partition of the plaint RSA.No.132/2024 3 schedule properties A to E, left by Bhargavi Amma, the mother of plaintiffs and defendants on the assertion that Bhargavi Amma died intestate. 5. Defendants 1 and 2 filed written statement and raised contention that no property is available for partition since Bhargavi Amma executed Will deed in their favour on 21.04.1989 and transferred the entire property in favour of the 1[st] and 2[nd] defendants. 6. Plaintiff filed replication and disputed the Will, relied on by the defendants. 7. Trial court ventured the matter. PW1 was examined and Exts.A1 to A8 were marked on the side of the plaintiffs. DW1 to DW3 were examined and Exts.B1 to B10 were marked on the side of the defendants. 8. Ultimately trial court decreed the Suit in part allowing partition of plaint D and E schedule properties excluding plaint A schedule property given in favour of the 2[nd] defendant and plaint B and C schedule properties given in favour of the 1[st] defendant on the strength of Ext.B1 Will deed. It was found by the trial court that the propounders of Ext.B1 Will proved the same RSA.No.132/2024 4 dismounting the doubtful circumstances surrounding thereof. Though appeal filed, the said verdict was confirmed. 9. It is fervently argued by two Advocates appeared for the plaintiffs on two days that Bhargavi Amma was not in a good health condition to travel 12 km from the residence to Chendamangalam, Sub Registry Office to complete the formalities of registration and the attestor of the Will, who was examined as DW2, is none other than the husband of the 2[nd] defendant, to justify doubtful circumstances attached to Ext.B1 Will and to hold the same as not genuine. 10. As regards to the mandate to prove the execution of a Will, the law is well settled. On reading Section 63 of the Succession Act with Section 68 of the Indian Evidence Act, it is the mandate that a person propounding the Will shall prove that the Will was duly and validly executed. That cannot be done by simply proving that the signature on the Will was that of the testator but must also prove that attestations were also made properly as required by Clause (c) of Section 63 of the Succession Act. It is true that Section 68 of the Indian Evidence Act does not RSA.No.132/2024 5 say that both or all the attesting witnesses must be examined. But at least one attesting witness to be called for proving the due execution of the Will as envisaged in Section 63. Although Section 63 of the Succession Act requires that a Will has to be attested at least by two witnesses, Section 68 of the Indian Evidence Act provides that a document, which is required by law to be attested, shall not be used as evidence until one attesting witness at least has been examined for the purpose of proving its due execution if such witness is alive and capable of giving evidence and subject to the process of the Court. However, Section 68 provides that those who want to prove and establish a Will in a Court of law, to do so, by examining at least one attesting witness even though the Will has to be attested at least by two witnesses mandatorily under Section 63 of the Indian Succession Act. But what is relevant and noteworthy is that one attesting witness examined should be in a position to prove the execution of a Will. To put in other words, if one attesting witness can prove execution of the Will in terms of Clause (c) of Section 63, viz. attestation by two attesting witnesses in the RSA.No.132/2024 6 manner contemplated therein, the examination of the other attesting witness can be dispensed with. The one attesting witness examined, in his evidence has to satisfy the attestation of a Will by him and the other attesting witness in order to prove there was due execution of the Will. If the attesting witness examined besides his attestation does not, in his evidence, satisfy the requirements of attestation of the Will by the other witness also it falls short of attestation of Will at least by two witnesses for the simple reason that the execution of the Will does not merely mean the signing of it by the testator but it means fulfilling and proof of all the formalities required under Section 63 of the Indian Succession Act. Where one attesting witness examined to prove the Will under Section 68 of the Indian Evidence Act fails to prove the due execution of the Will, then the other available attesting witness has to be called to supplement his evidence to make it complete in all respects. Where one attesting witness is examined and he fails to depose the attestation of the Will by the other witness, there will be deficiency in meeting the mandatory requirements of Section 68 of the Indian Evidence Act. The said RSA.No.132/2024 7 legal position emerges from the decisions reported in [2003 KHC 808 : 2003(2) SCC 91 : AIR 2003 SC 761, _**Janki Narayan Bhoir v. Narayan Namdeo Kadam**_ ; [2009 KHC 4790 : 2008 (15) SCC 365 : AIR 2009 SC 1389 : 2009(2) CHN 41 : 2009(2) Guj LR 1700 : 2009 (1) APLJ 6 : 2009(1) SCALE 328], _**Lalitaben Jayantilal Popat v. Pragnaben Jamnadas Kataria & Ors.** ,_ [2009 KHC 4382 : 2009 (11) SCC 1 : 2009 (1) KLT SN 52 : 2009 (3) SCALE 508], _**Rur Singh & Ors. v. Bacahan Kaur**_ , [(2013) 7 SCC 490 : AIR 2013 SC 2088], _**M.B Ramesh (dead) by LRs v.**_ . _**K.M.Veeraje Urs (dead) by LRs**_ 11. It is equally well settled that the burden to prove execution of Will and to show that it came out of free will of the testator is only on the propounder. A Will obtained by fraud, coercion or importunity is void under Section 61 of the Act. The testator, therefore, should have had necessary testamentary capacity to execute the Will and propounders claiming rights under the Will would have to establish that the testator was in sound disposing state of mind at the relevant period of time. The testator could be presumed to be of sound disposing state of mind RSA.No.132/2024 8 when he was in a position to understand the nature and effect of the disposition he made and also when he acted on his own free will. If there are suspicious circumstances affecting the genuineness of Will, the burden is still on the propounder to remove them and explain the circumstances. Decisions reported in [1959 KHC 498 : AIR 1959 SC 443 : 1959 Supp (1) SCR 426 : 1959 Mys LJ 424], _**H.Venkatachala Iyengar v. B.N.Thimmajamma & Ors.**_ ; [1964 KHC 465 : AIR 1964 SC 529], _**Shashi Kumar Banerjee & Ors. v. Subodh Kumar Banerjee since deceased and after him his legal representatives & Ors.**_ ; [2013 KHC 4372 : 2013 (2) KLJ 797 : 2013 (2) KLT SN 136 : AIR 2013 SC 2088 : 2013 (7) SCC 490 : 2013 (3) SCC (Civ) 576 : 2013 (4) KCCR 2945 : 2013 (4) ALD 104 : 2013 (127) AIC 155 : 2013 (3) CTC 650 : 2013 (99) ALR 487], _**M.B.Ramesh (D) By L.R.S v. K.M.Veeraje Urs (D) by LRS. & Ors.**_ and [1995 KHC 399 : 1995 (2) KLT 862 : 1995 (2) KLJ 577 : ILR 1996 (1) Ker. 566], _**Natarajan v. Sree Narayana D.S. Trust**_ , illustrated the said legal mandates. 12. Now a simple question poses is, merely because, the RSA.No.132/2024 9 attestor or attestors of a Will deed is/are relative/s of the propounder/s, his/their evidence to be thrown out to disbelieve the execution of the Will? Going by the mandate of Section 68 of the Evidence Act and Section 63(c) of the Indian Succession Act, there is no prohibition that a `close’ relative is disqualified to act as an attesting witness to a Will deed. Thus it emerges that there is no bar for a `close’ relative of the propounder/s of a Will to be an attesting witness and what is required is whether the evidence of the attesting witness, who supported the execution of the Will, inspires confidence of the Court and is reliable in tune with Section 68 of the Indian Evidence Act and 63(c) of the Indian Succession Act. If so, the same is liable to be acted upon. In this case, the trial court as well as the appellate court relied on the evidence of DW2 in support of execution of Ext.B1 Will by Bhargavi Amma, as provided under Section 68 of the Evidence Act read with Section 63(c) of the Indian Succession Act. 13. That apart, the trial court as well as the appellate court negatived the impossibility of execution of Ext.B1 Will by Bhargavi Amma and found the same free from doubtful circumstances, on the RSA.No.132/2024 10 finding that after the execution of Will on 23.09.2009 also, Bhargavi Amma executed other documents. In paragraph 21 of the trial court judgment the learned Sub Judge noted that Ext.B2 dated 21.08.2010 and Ext.B10 dated 11.05.2010 were executed by Bhargavi Amma. It was also noted by the learned Special Judge that the 1[st] defendant herein is the attesting witness to Exts.B2 and B10. Similarly, Bhargavi Amma executed power of attorney dated 09.08.2009 in favour of the 2[nd] defendant as Ext.B8 and accordingly Bhargavi Amma appointed the 2[nd] defendant to dispose of the property as per Ext.B8. That apart, in a previously instituted Suit as O.S.No.253/2010, Bhargavi Amma filed proof affidavit on 27.08.2010 and Ext.B5 is the certified copy of the same. Ext.B7 is certified copy of another affidavit filed by Bhargavi Amma as O.S.No.253/2010 as on 04.07.2012. It was noted by the trial court that though Ext.B5 was sworn in by Bhargavi Amma before the counsel appearing for the 1[st] defendant, Ext.B7 was sworn in by Bhargavi Amma before the counsel appearing for the plaintiffs. Thus it appears that Bhargavi Amma was in a good mental condition to execute Ext.B1 Will RSA.No.132/2024 11 since she authored Exts.B8, B10, B5, B7 and B8 after the execution of Ext.B9. It is shocking to note that the learned counsel for the plaintiffs attested Ext.B7 affidavit, challenges the capacity of Bhargavi Amma to execute Ext.B1, much prior to Ext.B7. Therefore the said challenge is not acceptable to prudence. 14. Going by Exts.B2, B10, B5, B7 and B8, no doubtful circumstances could be seen in the matter of execution of Ext.B1 Will, where DW2 categorically supported the execution in tenure and terms of Section 68 of the Evidence Act and Section 63(c) of the Indian Succession Act. Thereby, the trial court as well as the appellate court found that Ext.B1 was genuinely executed and the same was not surrounded by any doubtful circumstance thereby plaint A schedule property covered by Ext.B1 was given in favour of the 2[nd] defendant and plaint B and plaint C schedule properties covered by Ext.B1 were given in favour of the 1[st] defendant. Accordingly excluding plaint A, B and C items, partition is allowed in respect of plaint D and E schedule properties and the said finding is fully justified. Therefore, as such there is no RSA.No.132/2024 12 substantial question of law arises to admit and maintain this Second Appeal. 15. In order to admit and maintain a Second Appeal, substantial question of law necessarily to be formulated by the High Court within the mandate of Order XLII Rule 2 Read with Section 100 of C.P.C. 16. In this case, the learned counsel for the appellants failed to raise any substantial question of law warranting admission of the Second Appeals. Order XLII Rule 2 provides thus: ## _**“2. Power of Court to direct that the appeal be heard on**_ _**the question formulated by it.** -At the time of making an order under rule 11 of Order XLI for the hearing of a second appeal, the Court shall formulate the substantial question of law as required by section 100, and in doing so, the Court may direct that the second appeal be heard on the question so formulated and it shall not be open to the defendant to urge any other ground in the appeal without the leave of the Court, given in accordance with the provision of section 100.”_ 17. Section 100 of the C.P.C. provides that, (1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court RSA.No.132/2024 13 subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law. (2) An Appeal may lie under this section from an appellate decree passed ex parte. (3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal. (4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question. Proviso says that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question. 18. In the decision in [2020 KHC 6507 : AIR 2020 SC 4321 : 2020 (10) SCALE 168], _**Nazir Mohamed v. J. Kamala and Others**_ reported in the Apex Court held that: _The condition precedent for entertaining and deciding a second appeal being the existence of a substantial question of_ RSA.No.132/2024 14 _law, whenever a question is framed by the High Court, the High Court will have to show that the question is one of law and not just a question of facts, it also has to show that the question is a substantial question of law referring_ _**Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, [(1999) 3 SCC 722.**_ 19. In a latest decision of the Apex Court reported in [2023 (5) KHC 264 : 2023 (5) KLT 74 SC], _**Government of Kerala v. Joseph**_ , it was held as under: _For an appeal to be maintainable under Section 100, Code of Civil Procedure ('CPC', for brevity) it must fulfill certain well – established requirements. The primary and most important of them all is that the appeal should pose a substantial question of law. The sort of question that qualifies this criterion has been time and again reiterated by this Court._ 20. The legal position is no more _res-integra_ on the point that in order to admit and maintain a second appeal under Section 100 of the C.P.C, the Court shall formulate substantial question/s of law, and the said procedure is mandatory. Although the phrase 'substantial question of law' is not defined in the Code, 'substantial question of law' means; of having substance, essential, real, of sound worth, important or considerable. It is to be understood as RSA.No.132/2024 15 something in contradistinction with – technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of “substantial question of law” by suffixing the words “of general importance” as has been done in many other provisions such as S.109 of the Code or Art.133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. As such, second appeal cannot be decided on equitable grounds and the conditions mentioned in Section 100 read with Order XLII Rule 2 of the C.P.C. must be complied to admit and maintain a second appeal. 21. In view of the above fact, no substantial question of law arises in this matter to be decided by admitting this appeal. In the result, this appeal is found to be meritless and the same is dismissed without being admitted. All pending Interlocutory Applications stand dismissed. _Sd/-_ _**(A.BADHARUDEEN, JUDGE)**_ _rtr/_