P. K. Devayaniamma and Others v. Savithri Antherjanam and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **THURSDAY, THE 24TH DAY OF AUGUST 2017/2ND BHADRA, 1939** **RSA.No. 1034 of 2008 ( ) -------------------------** **AGAINST THE JUDGMENT IN AS 17/2003 of SUB COURT, THIRUVALLA DATED 2803-2008** **AGAINST THE JUDGMENT IN OS 38/1998 of MUNSIFF COURT, THIRUVALLA DATED 31-10-2002** ## **APPELLANTS/APPELLANTS/DEFENDANTS 1 TO 3;:** **------------------------------------------** **1. P.K.DEVAYANIAMMA, MONIPPALLIL LEKSHMI VILASAM, KAVUMBHAGAM VILLAGE, KAVUMBHAGAM MURI, THIRUVALLA TALUK.** **2. SAVITHA, MONIPPALLIL LEKSHMI VILASAM, KAVUMBHAGAM VILLAGE, KAVUMBHAGAM MURI,, THIRUVALLA TALUK.** **3. G.SASIKUMAR, MONIPPALLIL LEKSHMI VILASAM, KAVUMBHAGAM VILLAGE, KAVUMBHAGAM MURI,, THIRUVALLA TALUK.** **BY ADVS.SRI.S.SUBHASH CHAND SRI.K.RAMACHANDRAN SRI.S.SUBHASH CHAND SRI.S.SREEDEV** ## **RESPONDENTS/RESPONDENTS/PLAINTIFFS::** **--------------------------------------** - ***1. SAVITHRI ANTHERJANAM, VADAKKE THOTTASSERI ILLOM, THIRUVAMPADI MURI,, KAVUMBHAGAM VILLAGE, THIRUVALLA TALUK. (DIED)** **2. SARASWATHY ANTHERJANAM,** - **THOTARAMARANGATTU ILLAM, CHIRULATHUKARA MURI,, THRIKARIYOOR VILLAGE, KOTHAMANGALAM TALUK, RESIDING AT MAYALAM HOUSE, VALIYALUMCHUVADU,, KUMARAPURAM P.O., KOTTAYAM.** **3. V.N.KESAVAN NAMPOOTHIRI, VADAKKE THOTTASSERI ILLAM, THIRUVAMPADY MURI, KAVUMBHAGAM VILLAGE, THIRUVALLA TALUK.** **4. RADHAMANI ANTHERJANAM, IYKYANATHU MADAM, MATHILBHAGAM MURI, THIRUVALLA TALUK.** **RSA.No. 1034 of 2008 ( ) -------------------------** **2** **5. LEELAMANI ANTHERJANAM, KIZHAKKEKARAKATTU ILLAM, PERINGARA MURI, THIRUVALLA TALUK.** **6. KUSUMAKUMAR, KALLAMPALLI ILLAM, NANGYARKULANGARA KARA, MAVELIKARA VILLAGE.** **7. SUSHAMAKUMARI, NEELAMANA VEEDU, SOMAN NAGAR, KARAMANAKARA, THIRUVANANTHAPURAM.** **8. LALITHAMBIKA ANTHERJANAM, VARANAKKOTTU ILLAM, CHUNAKKARA, MAVELIKARA TALUK,, RESIDING AT GOVINDA BHAVANAM, ANCHAL ROAD,, THAMARAKULANGARA P.O., ERNAKULAM DISTRICT.** - ***. [R2 TO R8 RECORDED AS THE LRS OF DECEASED 1ST RESPONDENT VIDE ORDER DATED 30.10.2009IN MEMO BEARING CF 6847/2009]** **R2 TO R8 BY ADV. SRI.P.C.CHACKO(PARATHANAM) R2 TO R8 BY ADV. SRI.P.R.VENKETESH R2 TO R8 BY ADV. SRI.K.S.BHARATHAN** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 24-08-2017, ALONG WITH RSA 1036/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **A. HARIPRASAD, J.** **------------------------------R.S.A.Nos.1034 & 1036 of 2008 ---------------------------------------------Dated this the 24[th] day of August, 2017** ## **COMMON JUDGMENT** Sole appellant in R.S.A.No.1036 of 2008 is the 2[nd] appellant in R.S.A.No.1034 of 2008. 1[st] appellant in the above appeal is mother of the 2[nd] appellant and 3[rd] appellant is latter's husband. 2. O.S.No.460 of 1993 and O.S.No.38 of 1998 before the Court of Munsiff, Thiruvalla were tried together. 3. Brief facts: O.S.No.38 of 1998 is filed by the respondents in the appeal against the appellant in R.S.A.N.1036 of 2008 and two others. It is alleged that the plaintiffs in the suit are wife and children of deceased Narayanan Namboodhiri. He died on 30.4.1996. Plaint schedule item No.1 was settled in the name of 3[rd] plaintiff by his father Narayanan Namboodhiri by virtue of Ext.A1. The settlor Narayanan Namboodhiri reserved a life estate in respect of the properties covered in Ext.A1. 3[rd] plaintiff was in absolute possession and enjoyment of the properties. Out of 2 acres and **2** **R.S.A.Nos.1034 & 1036 of 2008** 42 cents of property, the 3[rd] plaintiff and his father sold 32 cents to strangers. It is alleged that deceased Narayanan Namboodhiri, under the influence of the 1[st] defendant, started neglecting his wife and children and was leading with the 1[st] defendant an infamous life. When the 3[rd] plaintiff got reliable information that under the influence of the 1[st] defendant, deceased Narayanan Namboodhiri was about to create certain documents in respect of plaint schedule property, a suit as O.S.No.192 of 1993 was filed seeking injunction. Deceased Narayanan Namboodhiri filed O.S.No.460 of 1993 seeking partition of the properties. It is alleged that in violation of the injunction order passed in O.S.No.192 of 1993, deceased Narayanan Namboodhiri cancelled the settlement deed (gift deed) executed in favour of the 3[rd] plaintiff and executed a sale deed in the year 1979 in favour of the 1[st] defendant in respect of 60 cents of property. It is also alleged that during the pendency of the suits, Narayanan Namboodhiri, who was aged 81 years then, was caused to execute a will deed under undue influence and coercion by the defendants. Deceased Narayanan Namboodhiri was not having testamentary capacity and he was **3** **R.S.A.Nos.1034 & 1036 of 2008** physically infirm. When the plaintiffs came to know about execution of the will deed only when the 2[nd] defendant filed an impleading petition in O.S.No.460 of 1993. It is therefore contended that the Will executed by deceased Narayanan Namboodhiri is vitiated by many factors and therefore, it should be declared to be an invalid document. 4. The defendants/appellants filed a written statement. According to them, Ext.A1 document executed in favour of the 3[rd] plaintiff did not come into effect and possession was not handed over by Narayanan Namboodhiri to the 3[rd] plaintiff. Later, Narayanan Namboodhiri executed a cancellation deed. The 3[rd] plaintiff has not derived any right by virtue of Ext.A1. It is the contention raised by the defendants that with the consent of the plaintiffs, deceased Narayanan Namboodhiri married the 1[st] defendant. 2[nd] defendant is the daughter born in that relationship. 3[rd] plaintiff did not take active interest in protecting the properties and welfare of the family. Therefore, deceased Narayanan Namboodhiri had to sell properties to various persons for family necessities. He was constrained to file a suit for partition against the plaintiffs as O.S.No.460 of 1993. **4** **R.S.A.Nos.1034 & 1036 of 2008** Will deed in the name of the 2[nd] defendant was executed with free consent and in full testamentary capacity. There was no undue influence or coercion as alleged. The Will has come into effect after death of Narayanan Namboodhiri. The suit is liable to be dismissed. 5. In O.S.No.460 of 1993, the plaint averments are as follows: The suit is one for partition. It was filed by Narayanan Namboodhiri during his life time. After his death, the appellant in R.S.A.No.1036 of 2008 joined the suit as additional 2[nd] plaintiff. 1[st] defendant is the son, 2[nd] defendant is the wife and 3[rd] defendant is the daughter of the original plaintiff. The original plaintiff, obtained the property by virtue of a partition deed of the year 1957. 6. The original plaintiff wanted to divide the property by metes and bounds. The defendants entered appearance and contended that there were 14 members entitled to claim the property and therefore, the original plaintiff was not entitled to get 1/4[th] share of the property. Family temple in the property was being managed by defendants 1 and 2. It is alleged that the **5** **R.S.A.Nos.1034 & 1036 of 2008** suit was filed at the instigation of the concubine of the 1[st] plaintiff with whom he was residing at the material time. It is seen from the records that O.S.No.460 of 1993 was the suit filed first in point of time. It was tried and disposed by the trial court against which an appeal was preferred before the lower appellate court. By that time, O.S.No.38 of 1998 was filed. Taking note of various factors, including the filing of O.S.No.38 of 1998, the lower appellate court remanded the matter to the trial court for a denovo trial and disposal, alongwith O.S.No.38 of 1998. Thereafter, the court below tried both the suits jointly and delivered a common judgment. Witnesses were examined on both sides and documents were also marked. 7. The trial court, after analyising the evidence, decreed O.S.No.38 of 1998 declaring Ext.A2 (Ext.A37) Will deed executed by Narayanan Namboodhiri in favour of the appellant in R.S.A.No.1036 of 2008 as null and void. O.S.No.460 of 1993 was dismissed on the basis of the finding in O.S.No.38 of 1998. Both the matters were carried in appeal to the lower appellate court by the appellants. Lower appellate court, after considering the evidence afresh, agreed with the trial court and dismissed both **6** **R.S.A.Nos.1034 & 1036 of 2008** the appeals. Hence, this second appeal. 8. Common substantial questions of law framed are as follows: 1. Whether the finding by the courts below that Will executed by deceased Narayanan Namboodhiri in favour of the sole appellant in R.S.A.No.1036 of 2008 is null and void, is legally justifiable ? - 2) Whether the finding of the lower appellate court that the sale deed was not properly attested, is correct ? - 3) Whether the sole appellant in R.S.A.No.1036 of 2008 is entitled to claim share in the property of her putative father deceased Narayanan Namboodhiri by virtue of Section 16 of Hindu Marriage Act ? - 4) Whether O.S.No.38 of 1998 is maintainable for want of a consequential relief flowing from the relief of declaration claimed ? 9. Heard the learned counsel appearing on both sides. 10. Learned counsel for the appellants vehemently contended that the courts below committed grave legal error in **7** **R.S.A.Nos.1034 & 1036 of 2008** finding that Ext.A2 (Ext.A37) Will is null and void for the reason that its execution was not proved. Per contra, learned counsel for the contesting respondents contended that a mere look at Ext.A2(Ext.A37) would show that there is no attestation as required under Section 63 of the Indian Succession Act, 1925. For clarity of thought, I shall exert Section 63 of the Indian Succession Act: 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 **8** **R.S.A.Nos.1034 & 1036 of 2008** the testator a personal acknowledgement of his signature or mark, or the signature of such other 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. 11. Regarding the manner of proof of a Will, Section 68 of the Evidence Act is applicable. It reads thus: Proof of execution of document required by law to be attested.- If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence: Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied. 12. Learned counsel took me through the deposition regarding the proof of Will. Apart from the testimony of the **9** **R.S.A.Nos.1034 & 1036 of 2008** appellant in R.S.A.No.1036 of 1998, who is the beneficiary of the Will, scribe and the Registrar who registered the document were examined. If one looks at the last page of the Will, it can be seen that after the testator has put his signature, two persons have signed and they described themselves as licensee and scribe. The scribe was examined as DW-3 and the document writer as DW-2. Sub Registrar was examined as DW-1. Learned counsel for the respondents took me through the deposition of the witnesses. Neither the appellant, when examined as PW-1 in the first round of litigation, nor DWs 1 to 3 deposed that they signed the Will in the presence of the testator. Essential condition under Section 63 (c) of the Indian Succession Act has not been deposed to by the witnesses. The lower appellate court correctly noticed this issue. 13. In addition to that, on a mere look at Ext.A2, it can be seen that DWs 2 and 3 signed only as a scribe and document writer and not as an attesting witness essentially required under Section 63 of the Succession Act. 14. This Court in **Lisamma v. Sarasamma [2017 (2) KLT 1084],** following the well settled principles, held that **10** **R.S.A.Nos.1034 & 1036 of 2008** unless a scribe exhibited animo attestandi it cannot be held that the scribe can claim elevated status of an attesting witnesses. Neither from the deposition nor from the document, it can be seen that the scribe and document writer ever intended to attest Ext.A2 Will. Therefore, the court below is right in holding that Ext.A2 Will was not proved. 15. Learned counsel for the appellant, relying on **Pentakota Satyanarayana v. Pentakota Seetharatnam [AIR 2005 SC 4362]** contended that endorsement by the Sub Registrar that the executant has acknowledged execution before him amounts to attestation. I have carefully gone through the facts in that case. It is seen from the facts narrated that all the witnesses relating to execution deposed that they had signed as identifying witnesses and that the attestator was in sound disposing state of mind. In the facts and circumstances, to prove that case, the Supreme Court observed thus: A perusal of Ext.B9 (in original) would show that the signatures of the Registering Officer and of the identifying witnesses affixed to the registration endorsement were, in our opinion, sufficient attestation within the meaning of the Act. The endorsement by the **11** **R.S.A.Nos.1034 & 1036 of 2008** sub-registrar that the executant has acknowledged before him execution did also amount to attestation. In the original document the executants signature was taken by the sub-registrar. The signature and thumb impression of the identifying witnesses were also taken in the document. After all this, the sub-registrar signed the deed. Unlike other documents the Will speaks from the death of the testator, and so, when it is propounded or produced before a Court, the testator who has already departed the world cannot say whether it is his Will or not and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last Will and the testament of departed testator. 16. Learned counsel for the appellants further relied on a decision rendered by a Division Bench of this Court in **Raveendran v. Gopi** [ **2015 (3) KLT 740]** . That was a case dealing with proof of a Will under Section 69 of the Evidence Act. It was held that when a witness is called to prove a Will under Section 69 of the Evidence Act, it is not warranted that he should specifically say that he had seen the executant affixing the signature; but it will be sufficient if it is proved that the signature was in the handwriting of the person affixing it. On a **12** **R.S.A.Nos.1034 & 1036 of 2008** reading of Section 69 of the Evidence Act, it can be seen that it applies to a case of a document which is compulsorily attestable where no attesting witness could be found. Here is a case where two persons who said to have attested the Will was examined. Therefore, the above mentioned decision rendered by the Division Bench has no application in this case. 17. From totality of evidence, I find that the courts below were justified in taking a view that Ext.A2 (Ext.A37) had not been proved. 18. Another contention taken by the appellants is that the appellant in R.S.A.No.1036 of 2008, being the daughter of deceased Narayanan Namboodhiri, is entitled to inherit his estate under Section 16 of the Hindu Marriage Act. Section 16 reads thus: Legitimacy of children of void and voidable marriages.- - (1) Notwithstanding that marriage is null and void under Section 11, any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate, whether such child is born before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), and whether or not a decree of nullity is **13** **R.S.A.Nos.1034 & 1036 of 2008** granted in respect of that marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act. - (2) Where a decree of nullity is granted in respect of a voidable marriage under section 12, any child begotten or conceived before the decree is made, who would have been the legitimate child of the parties to the marriage if at the date of the decree it had been dissolved instead of being annulled, shall be deemed to be their legitimate child notwithstanding the decree of nullity. - (3) Nothing contained in sub-section (1) or subsection (2) shall be construed as conferring upon any child of a marriage which is null and void or which is annulled by a decree of nullity under section 12, any rights in or to the property of any person, other than the parents, in any case where, but for the passing of this Act, such child would have been incapable of possessing or acquiring any such rights by reason of his not being the legitimate child of his parents. 19. In this context, it is relevant to note from the pleadings in O.S.No.38 of 1998 that the status of the appellant in RSA 1036 of 2008, as daughter of deceased Narayanan Namboodhiri, is a disputed question of fact. It is strongly **14** **R.S.A.Nos.1034 & 1036 of 2008** contended by the learned counsel for the respondents that the 1[st] appellant in R.S.A.No.1034 of 2008, who is said to be the second wife of deceased Narayanan Namboodhiri, was not examined, to prove the factum of marriage. It is therefore argued that the contention of the appellant in R.S.A.No.1036 of 2008 that she is entitled to inherit under Section 16 of the Hindu Marriage Act is unsustainable. 20. Learned counsel for the respondent, based on **Jayachandran v. Valsala [2016 (2) KHC 177]** contended that there is neither pleadings nor proof to establish the marriage between deceased Narayanan Namboodhiri and the 1[st] appellant in RSA 1034 of 2008. It is all the more important to note that she abstained from the witness box. In this context, the principles in **Jayachandran's case** will apply to the facts of this case. The question whether a ceremony of marriage has to be proved for getting benefit of Section 16 of the Hindu Marriage Act was considered by this Court and in paragraphs 14 to 16, the law laid down is thus: 14. For a host of reasons, we are unable to accept these contentions of the learned counsel for the **15** **R.S.A.Nos.1034 & 1036 of 2008** respondents. Firstly, Section 16 of the Act confers legitimacy of children of void and voidable marriages. In other words, sub-section (1) of Section 16 of the Act deals with a marriage, which is null and void under Section 11 of the Act and sub-section (2) therein deals with a voidable marriage annullable under Section 12 of the Act. The legal distinction between void and voidable marriages will have to be borne in mind. It may be true that a void marriage does not exist in the eye of law. Nevertheless, a voidable marriage operates with full vigour and has legal effect, if not annulled by taking recourse to Section 12 of the Act. These two types of marriages are dealt with in Section 16 of the Act. Well settled principle of interpretation of Statute is that the intention of the Legislature must be found in the words used by the Legislature itself. Supreme Court in Reserve Bank of India v. Peerless General Finance and Investment Co. held: “Interpretation must depend on the text and context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives colour. Neither can be ignored. Both are important that interpretation is best, which makes the textual interpretation match the contextual. A Statute is best interpreted when we know why it was enacted.” Viewing from any perspective, we are unable to think that the Legislature intended no legal consequence for **16** **R.S.A.Nos.1034 & 1036 of 2008** using the expression “marriage”, which may be null and void, in Section 16 of the Act. 15. Secondly, the Hindu Marriage Act, 1955 is an Act to amend and codify the law relating to marriage among Hindus. The Legislature did not venture to define the expression “marriage” in the Act, rightly so, because the intent and purport of the term was well known to a civilised society. Section 4 of the Act speaks about the overriding effect of the Act on any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of the Act. It declares that they shall cease to have effect with respect to any matter for which provision is made in the Act. Section 5 of the Act deals with the conditions for a Hindu marriage. Section 7 of the Act says about the ceremonies for a Hindu Marriage. It says that a Hindu marriage may be solemnized in accordance with the customary rites or ceremonies of either party thereto. If such rites and ceremonies include “saptapadi”, the marriage becomes complete and binding when the seventh step is taken. On a reading of Section 11 of the Act, it is clear that any marriage solemnized after the commencement of the Act shall be null and void, if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of Section 5 of the Act. It further says that it may be so declared by a decree of nullity on a petition presented **17** **R.S.A.Nos.1034 & 1036 of 2008** by either party to the marriage. It is fundamental that for declaring a thing to be non est in the eye of law, the thing must exist. Conversely, no legal declaration can be made in respect of a thing which does not exist. For example, an assignment deed executed by a person who is not sui juris, either on account of his minority or mental illness, is undoubtedly a void document. To declare that it is a void document, it must have been executed. Black hole theory in the realm of Astronomy that no matter, including an electromagnetic radiation, such as light, can exist in a black hole due to strong and excessive gravitational effect, has no application in the field of law. Therefore the contention of the learned counsel for the respondents that whether a void marriage is performed or not is immaterial for the purpose of Section 16 of the Act is unacceptable. 16. Thirdly, the proposition that no marriage need be pleaded or proved to attract Section 16 of the Act is paradoxical to the object of the enactment. Even though Section 16 of the Act is held to be a beneficial Legislation, it cannot be stretched that far. The object of the Act is to protect children born to Hindus, once it is proved that they performed the ceremony of a marriage, in whatever form it be, although ultimately it may later turn out to be a void marriage. 21. In this context, learned counsel for the appellants **18** **R.S.A.Nos.1034 & 1036 of 2008** contended that the salutary object of introducing Section 16 (2) of the Hindu Marriage Act is to alleviate the difficulties faced by children born out of illegal or inefficient marriage. It is, according to the learned counsel, the philosophy behind the introduction of Section 16 of the Hindu Marriage Act that has to be borne in mind. It is true that the provision is intended to benefit children born either in a void or voidable marriage. It is also made clear in the Section that they are allowed to inherit the property belonging to their father. This provision cannot be stretched to reach at the property belonging to a joint family. On calculating the age of the appellant in R.S.A.No.1036 of 2008, it can be seen that she must have been borne before 01.12.1976, ie, the date on which the Kerala Joint Hindu Family System (Abolishment) Act, 1975 came into force. At the most, the appellant in R.S.A.No.1036 of 2008 could only claim a right in the separate property of deceased Narayanan Namboodhiri. Even for that, the factum of marriage between the 1[st] appellant in R.S.A.No.1034 of 2008 and deceased Narayanan Namboodhiri should have been pleaded and proved. Learned counsel for the respondents took me through the pleadings in the cases and the **19** **R.S.A.Nos.1034 & 1036 of 2008** evidence adduced by the parties. Nowhere it is mentioned that deceased Narayanan Namboodhiri married 1[st] appellant in R.S.A.No.1034 of 2008 at any point of time. It appears that they cohabited as husband and wife for a long time in contravention of the provision in Hindu Marriage Act, 1955. 22. In this context, it is relevant to note that there is a catena of decisions to fortify a principle that a child born in the relationship between a man and wife, who lived for long as such, is entitled to inherit the properties. These principle can be applied only to the extent of personal properties and not family properties. Learned counsel for the respondents submitted that the appellant in R.S.A.No.1036 of 2008 cannot claim any benefit even on this score for the reason that there is no sufficient pleading to establish a long term cohabitation between deceased Narayanan Namboodhiri and 1[st] appellant in R.S.A.No.1034 of 2008. 23. Another contention raised by the learned counsel for the appellants is that O.S.No.38 of 1998 is not maintainable for the reason that no consequential relief is sought for, except a declaration and cancellation of Ext.A2 Will. Section 34 of the **20** **R.S.A.Nos.1034 & 1036 of 2008** ## Specific Relief Act, 1963 reads as follows: Discretion of court as to declaration of status or right.Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief: Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so. 24. It is settled law that when a consequential relief flows out of the main relief, the plaintiff is bound to seek such a relief. Otherwise, the declaratory relief becomes unallowable. Relying on Pullock and Mulla on Specific Relief Act, 14[th] Edition, page 283, it is contended by the learned counsel for the appellants that in the case of a Will, mere declaration that it is invalid is insufficient after death of the testator. To controvert this contention, learned counsel for the respondents relied on **Mst.Rukhmabai v. Lala Laxminarayan [AIR 1960 SC 335]** to urge the following proposition. **21** **R.S.A.Nos.1034 & 1036 of 2008** 30. The next question raised by the learned Counsel for the appellants is that the suit should have been dismissed in limine as the plaintiff asked for a bare declaration though he was in a position to ask for further relief within the meaning of S.42 of the Specific Relief Act. The proviso to S.42 of the said Act enacts that “no Court shall make any such declaration when the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so”. It is a well settled rule of practice not to dismiss suits automatically but to allow the plaintiff to make necessary amendment if he seeks to do so. The learned Counsel for the appellant contends that in the plaint the cause of action for the relief of declaration was given as the execution of the partition decree through the Commissioner appointed by the Court and, therefore, the plaintiff should have asked for a permanent injunction restraining the appellant from interfering with his possession. The appellant did not take this plea in the written statement; nor was there any issue in respect thereof, though as many as 12 issues were raised on the pleadings; nor does the judgment of the learned District Judge disclose that the appellant raised any such plea. For the first time the plea based on S.42 of the Specific Relief Act was raised before the High Court, and even then the argument advanced was that the consequential relief should have been one for **22** **R.S.A.Nos.1034 & 1036 of 2008** partition: the High Court rejected the contention on the ground that the plaintiff, being in possession of the joint family property, was no bound to ask for partition if he did not have the intention to separate himself from the other members of the family. It is not necessary in this case to express our opinion on the question whether the consequential relief should have been asked for; for, this question should have been raised at the earliest point of time, in which event the plaintiff could have asked for necessary amendment to comply with the provisions of S.42 of the Specific Relief Act. In the circumstance, we are not justified in allowing the appellant to raise the plea before us. 25. The nice distinction pointed out by the learned counsel for the appellants is that the observation by the Supreme Court was not in the case of a Will; but going by the prayers in O.S.No.38 of 1998 and the relief granted by the trial court, it is seen that apart from a declaration that Ext.A2 Will is null and void, a relief of setting aside was also granted. It may be true that no court fee was paid for granting the relief. However, sufficiency of court fee cannot be challenged in a second appeal and it can be done only as provided in Section 12 of the Kerala Court Fees and Suits Valuation Act, 1959. Therefore, this point **23** **R.S.A.Nos.1034 & 1036 of 2008** ## urged by the appellants is not sustainable. Considering the entire facts and circumstances, I find no reason to interfere with the concurrent findings entered by the courts below on a correct appreciation of evidence. The substantial questions of law raised can only be decided against the appellants. Hence, I do so. In the result, both the appeals are dismissed. JV SD/- **A. HARIPRASAD JUDGE**