Padhmanabhan and Vijayan v. Yeshoda and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA MONDAY, THE 28[TH] DAY OF NOVEMBER 2022 / 7TH AGRAHAYANA, 1944** **RSA NO. 1202 OF 2018** **AGAINST THE JUDGMENT AND DECREE DATED 24.03.2018 IN A.S.** **NO.196/2012 OF SUB COURT, KANNUR** **AGAINST THE JUDGMENT AND DECREE DATED 29.10.2010 IN O.S. NO.8/2008 OF ADDITIONAL MUNSIFF'S COURT, KANNUR** ## **APPELLANTS/RESPONDENTS 1, 3 TO 5, 8 & 9/PLAINTIFFS & LEGAL HEIRS** ## **OF DECEASED 3RD PLAINTIFF:** 1 THILAKAM PADMANABHAN, W/O.LATE PADMANABHAN, AGED 85 YEARS, THILAK VILLA, A/9 S.N.NAGAR, CHALA, THOTTADA P.O., KANNUR. 2 SUDHA CHANDRAN, D/O.LATE PADMANABHAN, AGED 62 YEAR, THILAK VILLA, A/9 S.N.NAGAR, CHALA, THOTTADA P.O., KANNUR. 3 K.VILAS,(DIED) (LEGAL HEIRS IMPLEADED) S/O.LATE PADMANABHAN, AGED 60 YEARS THILAK VILLA, A/9 S.N.NAGAR, CHALA, THOTTADA P.O., KANNUR. 4 K.VIVEK AGED 58 YEARS S/O.LATE PADMANABHAN, THILAK VILLA, A/9 S.N.NAGAR, CHALA, THOTTADA P.O., KANNUR. 5 SMITHA SUDHEER, AGED 54 YEARS W/O.LATE SUDHEER, FLAT NO.GB, SHAKTHI APARTMENTS, 2031, 13TH MAIN ROAD, ANNA NAGAR WEST, CHENNAI-600 040. 6 VISHAL SUDHEER, AGED 28 YEARS S/O.LATE SUDHEER, FLAT NO.GB, SHAKTHI APARTMENTS, 2031, 13TH MAIN ROAD, ANNA NAGAR WEST, CHENNAI-600 040. RSA No.1202 of 2018 2 7 ADDL.A7 K.C.REETHA VILAS, AGED 63 YEARS,W/O.LATE K.VILAS, THILAK VILLA, A/9 S.N.NAGAR, CHALA, THOTTADA P.O., KANNUR-670 007. 8 ADDL.A8. NISITHA VILAS AGED 33 YEARS,D/O.LATE K.VILAS,THILAK VILLA, A/9 S.N.NAGAR, CHALA, THOTTADA P.O., KANNUR-670 007. (THE LEGAL HEIRS OF DECEASED 3RD APPELLANT ARE IMPLEADED AS ADDITIONAL APPELLANTS 7 AND 8 AND IT IS ALSO RECORDED THAT 1ST APPELLANT IS ALSO ONE OF THE OTHER LEGAL HEIRS OF THE DECEASED 3RD APPELLANT AS PER ORDER DATED 01.09.2022 IN IA.1/2022.) BY ADV T.G.RAJENDRAN ## **RESPONDENTS/APPELLANTS & RESPONDENTS 6, 7/DEFENDANTS AND LEGAL HEIRS OF DECEASED 6TH DEFENDANT:** 1 SATHI RAM, D/O.YESHODA,SATYALAYAM, TALAP, KANNUR DISTRICT-670 002. 2 SINDHU HARIKRISHNAN, D/O.SATHIRAM, TALAP, KANNUR DISTRICT-670 002. 3 VIPINA VINOD, W/O.R.VINOD MURARI, FLAT NO.5, KAMADENU APARTMENTS, KINGS DON ROAD, RICHMOND TOWN, BANGALORE-560 025. 4 R.PRAMOD MURARI, S/O.SATHIRAM, 25 AND 26 KRISTAL TIARA, BELUNDUR GATE, AMABALIPURA, BANGALORE-560 037. 5 R.SANAD MURARI, S/O.SATHI RAM, 1330 GLOBE NEST, MANNURPET ROAD, MUGAPAIR, CHENNAI-600 050. 6 SHARMILA P.MURARI, W/O.LATE PRASAD MURARI, FLAT NO.20, SATYA APARTMENTS, SRINIKETAN COLONY, ROAD NO.3, BANJARA HILLS, HYDERABAD-500 034. 7 THUSHAR P.MURARI, S/O.LATE PRASAD MURARI, FLAT NO.20, SATYA APARTMENTS, SRINIKETAN COLONY, ROAD NO.3, BANJARA HILLS, HYDERABAD-500 034. 8 REETHIKA PRASAD, RSA No.1202 of 2018 3 D/O.LATE PRASAD MURARI, FLAT NO.20, SATYA APARTMENTS, SRINIKETAN COLONY, ROAD NO.3, BANJARA HILLS, HYDERABAD-500 034. 9 SHYAMALA VIJAYAN, W/O.LATE K.VIJAYAN, 61-LAVRITA, 6TH FLOOR, JUHU-TAVA ROAD, BOMBAY, MAHARASHTRA-400 049. 10 ANITHA ANAND, D/O.LATE K.VIJAYAN, 61-LAVRITA, 6TH FLOOR, JUHU-TAVA ROAD, BOMBAY, MAHARASHTRA-400 049. BY ADV V.KRISHNA MENON – R2 (CAVEATOR) R3, R6,R7 & R8 ## **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON** **14.11.2022, THE COURT ON 28.11.2022 DELIVERED THE FOLLOWING:** RSA No.1202 of 2018 4 ## **JUDGMENT** Dated this the 28[th] day of November, 2022 This appeal has been directed against the judgment and decree in A.S. No.196/2012 on the file of the Sub Court, Kannur, which in turn arise out judgment and decree in O.S. No.8/2008 on the file of Additional Munsiff's Court, Kannur. 2. The suit is one for partition. The suit has been field by one Padhmanabhan, the brother of 1[st] defendant and one Vijayan who are the children of Yasoda. Pending suit the plaintiff died and the legal heirs were impleaded as supplemental plaintiffs as 2 to 6. The defendants 2 and 3 are the legal heirs of late Vijayan. Yeshoda died in the year 1977. The 1[st] defendant has been residing in the house situated in the plaint schedule property. The plaintiff and Vijayan were settled out of Kerala in connection with their employment. The plaintiff returned to Kannur in the year 1977. Then he found another house in the plaint schedule property. On enquiry with the 1[st] defendant, it was informed that it was constructed with the income from plaint schedule property and valuable trees were also cut for the construction of the house. Being the RSA No.1202 of 2018 5 sister the plaintiff did not object. The plaintiff demanded partition several times and finally registered notice was issued on 14.09.2007 seeking for partition, for which reply was given alleging execution of Will by the mother. The plaintiff has been maintaining mother and was meeting all her expenses. So there is no chance for executing such a Will excluding the plaintiff. Hence, the suit. 3. The 1[st] defendant and 4[th] defendant, her daughter filed written statement contending that Yeshoda executed a registered Will on 06.11.1959 of Sub Registry Office, Kannur. As per which she bequeathed entire plaint schedule property in favour of 1[st] defendant the only daughter and it came into force after her death and the 1[st] defendant is the absolute owner in possession of the property. The plaintiff never demanded partition as alleged till the lawyer notice was sent on 14.09.2007. 4. The mother Yeshoda was healthy and was of sound mind and was capable of understanding things and decide matters on her own. In 1978 the plaintiff returned and he accepted the Will and never raised any objection and went for employment to other places. He permanently came back in the RSA No.1202 of 2018 6 year 1997. The signature of the plaintiff in the plaint and vakalath are disputed. It is contended that due to the hike in value of immovable property in Kannur and attractions in the real estate field the suit has been filed. The 1[st] defendant executed the settlement deeds in favour of her children from 1992 onwards. 5. In view of the contentions raised by the 1[st] defendant, supplemental defendants 5 to 8 were impleaded and they filed joint written statement supporting the contentions in the written statement of 1[st] and 4[th] defendants. 6. There was no oral evidence from the side of the plaintiff and Ext.A1 to A4 were marked. DW1 and DW2 examined, Ext.B1 to B13 were marked from the side of the defendants and Ext.C1 to C4 were also marked. 7. On evaluating the rival contentions and facts, circumstances and evidence adduced the trial court found that the defendants failed to prove execution of Ext.B2 Will and ordered partition of the plaint schedule property. Against which the supplemental plaintiffs filed appeal and the 1[st] Appellate Court set aside the judgment and decree passed by the trial court and the case was remanded to the trial court for fresh RSA No.1202 of 2018 7 consideration. That judgment and decree was challenged before this Court FAO(RO) 220/2016 and this Court set aside the order of remand and the case was remanded to the 1[st] Appellate Court. Thereafter, the impugned judgment was passed. The additional documents Ext.B14 to B17 has been marked as per order in I.A. No.1484/2014 by the first appellate court. 8. The 1[st] Appellate Court considered the matter afresh and found that Ext.B2 Will is more than 30 years old and following the decision of this Court in **Narayanan Radhakrishna Menon and Others v. Narayanan Sukumara Menon 2018 (1) KHC 412** which was passed following the decision of the privy counsel in **Munnalal v. Kashibai AIR 1947 PC 145** , it has been held that the will has been produced in original from proper custody which is more than 30 years old and the legatee of the Will proved Ext.B2 and drawing presumption under Section 19 which was not rebutted found that the defendants succeeded to prove execution of Ext.B2 Will and accordingly dismissed the suit. Against which the supplemental plaintiffs as well as the legal heirs of the deceased 3[rd] supplemental plaintiff approaches this RSA No.1202 of 2018 8 ## Court in the regular second appeal. 9. Notice was issued to the respondents. Lower court records were called for and both sides were heard. 10. The only arguments advanced by the learned counsel for the appellant is with regard to the findings of the 1[st] Appellate Court regarding the proof of execution of the Will drawing the Presumption under Section 90 of the Indian Evidence Act. It is contended that Apex Court as per the judgment in **Bharpur Singh and Others v. Shamsher Singh** [ **2009 (3) SCC 687 : 2009 (1) KLT SN 13 (C.No.12):2009 KHC 4239** ] held that presumption regarding the documents of 30 years old is not applicable in the case of Will and a Will must be proved in terms of Section 63(c) of the Succession Act, 1925 and Section 65 of the Indian Evidence Act, 1872. In case those provisions cannot be complied with Section 69 and 70 of the Indian Evidence Act providing for exceptions in relation there to is to be complied with. 11. The learned counsel for the respondent on the other hand relied on **Narayanan Radhakrishna Menon and Others v. Narayanan Sukumara Menon [2018 (1) KHC** **412],** wherein the learned Single Judge of this Court dealt RSA No.1202 of 2018 9 with the scope of Section 90 of Evidence Act,1872 and presumption as to documents of 30 years old and held that the Will produced in original from proper custody and which was more than 30 years old should be taken as proved in all respects including its execution, attestation and also the testamentary capacity of the testator. 12. So the only question for determination is whether the 1[st] Appellate Court went wrong in drawing the presumption under Section 90 of Indian Evidence Act with respect to Ext.B2 Will. It is relevant in this context to quote Section 90 which deals with presumption as to document of 30 years old which reads thus: _“90. Presumption as to documents thirty years old – Where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person’s handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be_ RSA No.1202 of 2018 10 ## _executed and attested._ _Explanation.– Documents are said to be in proper custody if they are in the place in which, and under the care of the person with whom, they would naturally be; but no custody is improper if it is proved to have had a legitimate origin, or if the circumstances of the particular case are such as to render such an origin probable.”_ ## 13. **Narayanan Radhakrishna Menon and Others v.** **Narayanan Sukumara Menon** Para **No.34 and 35** are relevant in this context is to be extracted which reads thus: _“34. On an analysis of the Section, it can be seen that its ingredients are:_ _(i) the document in question must be purported to be or proved to be 30 years old;_ _(ii) it must be produced from a custody which the court in the particular case considers proper;_ _(iii) if the above conditions are satisfied, the court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person is in that person's handwriting; and_ RSA No.1202 of 2018 11 _(iv) in the case of a document executed or attested, the court may presume that it was duly executed and attested by the persons by whom it purports to be executed and attested._ _Explanation to Section 90 unequivocally says that documents are said to be in proper custody, if they are in the place in which and under the care of the person with whom they would naturally be. It further says that no custody will be improper, if it is proved to have had a legitimate origin or if the circumstances of the particular case are such as to render such an origin probable. It is clear from a reading of the Section and in particular the explanation that the presumption drawable under Section 90 of the Evidence Act has a direct bearing on the facts and circumstances in each case._ _35. The phrase 'may presume' has been defined in Section 4 of the Evidence Act as follows:_ _““_ _**May presume”.-** Whenever it is provided by this Act that the Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it.”_ _A court, where it 'may presume' a fact, has a discretion to presume it as proved or to call for confirmatory evidence of it, as the circumstances require in a given case. Of course, power of the court to call for evidence de hors the presumption cannot be doubted.”_ RSA No.1202 of 2018 12 14. In this case, Ext.B2 Will has been produced by the 1[st] defendant the legatee under the Will. Specifically it has been contented in the written statement about the execution of the Will by the mother in the year 1959, decades before her death and she died only in the year 1977. The plaintiff though denied the execution of the Will by the mother alleging that he had been looking after the affairs of the mother and hence there is no occasion for the mother to exclude him from inheritance, the plaintiff did not enter the box and adduced any evidence to attribute any suspicious circumstance in the execution of the Will. Admittedly, the plaintiff and Vijayan, the other brother were away from in connection with their employment. The plaintiff admittedly had returned and settled in Kannur in the year 1977 according to the plaintiff. But the present suit has been filed in the year 2010 and the lawyer notice has been issued in the year 2007. Though the 1[st] defendant raised a contention in the written statement that the signature of the plaintiff in the plaint and also in the vakalath is not that of the plaintiff, it was sent for expert opinion and it has been concluded by the court that it has been signed by the plaintiff. RSA No.1202 of 2018 13 15. The plaintiff admits in the plaint itself that in the year 1977 when he came to the plaint schedule property , he saw a house in the schedule property and on enquiry with the 1[st] defendant she alleged to have informed that the house was constructed with the income from the plaint schedule property and also by cutting valuable trees from the schedule property and hence he did not objects. But no evidence has been adduced from the plaintiff to substantiate that allegation. On the other hand, 1[st] defendant was examined as DW1, she has categorically stated in the chief affidavit that the Will was executed with the consent of the plaintiff as well as Vijayan and they are quite aware after the death of the mother that she is in possession of enjoyment of the property. It is also stated that the Will was executed on free Will and volition of the mother and the mother was fully healthy both physically and mentally and has been capable of taking decisions on her own. The witnesses in the Will are father and uncle. She also stated that both witnesses died and death certificate of the father is marked as Ext.B5 and the summons sent to the witnesses got returned with endorsement, ‘died’ has been marked as Ext.C1 series. The Will was produced from proper RSA No.1202 of 2018 14 custody. 16. The learned counsel relies on **Bharpur Singh and Others v. Shamsher Singh** to contend that the presumption regarding documents of 30 years old is not applicable to the Will. The facts of that case would go to show that the testatrix the mother of the appellants, two daughters alleged to have executed a will in favour of the respondent whose case is that during the life time of testatrix he looked after her and the testatrix expired in the house of his daughter. The testatrix had four daughters and disinheriting them that the will alleged to have been executed in favour of the respondent an outsider and the execution of the will was disputed by the daughters in the written statement and also disputed the allegation of the respondent that testatrix has been looked after by the respondent. It is also their contention that the husband of testatrix was murdered 60 years back and she lost her balance of mind and had not been possessing sound mental faculties and that she was being looked after by her daughters. The trial Judge found that respondent/plaintiff failed to prove that testatrix executed a legal and valid will in his favour out of sound disposing mind and the 1[st] appellate court reversed the RSA No.1202 of 2018 15 judgment and 2[nd] appeal filed before the High Court and was dismissed. Against which the appellant daughters approaches the Apex Court.But quoting that decision as well as **M.B. Ramesh (D) by LRs. V. K.M.Veeraje Urs (D) by LRs. and Others (2013 SAR (Civil) 574** ), the learned Single Judge in **Narayana Radhakrishna Menon** held that both these decisions were pronounced by Bench of two Judges. It was contended by the Learned Senior Counsel that those decisions do not constitute binding precedents, for the reason that a Larger Bench decision of Hon'ble Supreme Court holding otherwise was not referred to and considered in the above decisions. 17. In paragraph Nos.39, 40 and 41 the learned Single Judge discussed the rival arguments which read thus: _“39. Relying on Munnalal v. Kashibai it is contended that a Will more than 30 years old and produced from proper custody should be presumed to be properly executed. Also, the testator should be presumed to be of sound mind at the time of execution. In that case, two suits for ejectment were consolidated and tried. Dissatisfied with the decree, an appeal was preferred before the High Court of Judicature at Nagpur and its decision was questioned before the Privy Council. Trial court decreed the suits, but on appeals the High Court dismissed_ RSA No.1202 of 2018 16 _them. Title of the plaintiffs in both the suits had been traced from one Balwant Singh, who died in the year 1907. Respondents claimed title through Bahadur Singh, the younger brother of Balwant Singh's father. In the appeal, it was not disputed that Bahadur Singh was the owner of property and had power to dispose of it by a Will. The only question was whether he effectively made a bequest. It was contended that Bahadur Singh died on 13.04.1890, after having made a Will dated 30.03.1890 under which he bequeathed the property to his daughter Jankibai and her minor son Narain. The trial Judge held that the burden rested upon the respondents 1 and 2 to prove the Will. It was also held that though the court could presume under Section 90 of the Evidence Act that the Will had been properly executed and attested, the court could not, under that Section, presume that the testator, when he made his Will, was of sound disposing mind. Accordingly, the trial court held that the Will was not proved. In appeal, the High Court held that the presumption which could be drawn under Section 90 of_ _the Evidence Act is extended to the testamentary capacity as well and held the Will stood proved. Noticing Sections 90 and 114 of the Evidence Act, the Privy Council held thus:_ _“The will of Bahadur was more than 30 years old and was produced from proper custody, and both the lower Courts rightly held that the actual execution and attestation of the will could be presumed under Section 90; they differed on the question whether the presumption extended to the testamentary capacity of the testator. A party setting up a will is required to_ RSA No.1202 of 2018 17 _prove that the testator was of sound disposing mind when he made his will but, in the absence of any evidence as to the state of the testator's mind, proof that he had executed a will rational in character in the presence of witnesses must lead to a presumption that he was of sound mind and understood what he was about. This presumption can be justified under the express provisions of Section 90, since a will cannot be said to be 'duly' executed by a person who was not competent to execute it; and the presumption can be fortified under the more general provisions of Section 114, since it is likely that a man who performs a solemn and rational act in the presence of witnesses is sane and understands what he is about. There was no evidence whatever that Bahadur was not in a perfectly normal state. Their Lordships feel no doubt that on this point the decision of the High Court was right, and that the will must be presumed to have been duly executed. The view taken by the learned Subordinate Judge would render it impossible, in most cases, to prove ancient wills. This disposes of the first appeal.”_ _40. This decision of the Privy Council came up for consideration before a three Judge Bench of the Supreme Court in K.V.Subbaraju v. C.Subbaraju (AIR 1968 SC 947). The principle therein was approved in the following words:_ _“5. As aforesaid, the respondents did not produce the original will but produced only its certified copy, Ex. B. 9, which they obtained from the record of Suit No.21_ RSA No.1202 of 2018 18 _of 1923 wherein Surayamma had filed the original will along with her written statement. The respondents, however, had given notice to the appellants to produce the original will alleging that it was in their possession but the appellants denied the allegation and failed to produce the will. Both the trial Court and the High Court were of the view that the said will along with other papers of Somaraju were in the appellants' custody, that they had deliberately withheld it as it was in their interest not to produce it. The trial Court therefore was in these circumstances justified in admitting the certified copy of the will as secondary evidence of the contents of the will. Since the will was executed in 1921 and the testator had died soon after its execution it was not possible to produce either its writer or the witnesses who attested it. It was undisputed that its scribe and the attesting witnesses were all dead except Daltapati Venkatapathi Raju, DW 4. But the appellants' contention as regards DW 4 was that he was not the same person who attested the will. The High Court appears to have relied upon Section 90 of the Evidence Act and to have drawn the presumption that the will being more than 30 years old it was duly executed and attested by the persons by whom it purported to have been executed and attested. Such a presumption, however, under that section arises in respect of an original document. (See Munnalal v. Mt.Kashibai, AIR 1947 PC 15). Where a certified copy of a document is produced the correct position is as stated in Basant Singh v Brij Raj Saran Singh, 67 Ind App 180 : AIR 1935 PC 132)where the Privy Council laid down that if the document produced is_ RSA No.1202 of 2018 19 _a copy admitted under Section 65 as secondary evidence and it is produced from proper custody and is over 30 years old only the signatures authenticating the copy can be presumed to be genuine. The production of a copy therefore does not warrant the presumption of due execution of the original document. The Privy Council repelled the argument that where a copy of a will has been admitted the Court is entitled to presume the genuineness of such will which purports to be 30 years old. Relying on the words "where any document purporting or proved to be 30 years old" in Section 90, the Privy Council held that the production which entitles the Court to draw the presumption as to execution and attestation is of the original and not its copy and that the decisions of the High Courts of Calcutta and Allahabad on which the argument was based were not correctly decided. This view has since then been approved of by this Court in Harihar Prasad v. Deo Narain Prasad, (1956 SCR 1 at p. 9) = (AIR 1956 SC 305 at p. 309). The High Court therefore was not entitled to presume from the production of the copy either the execution or the attestation of the said will.”_ _41. Striking difference between the facts in Munnalal and K.V.Subbaraju is that in the former case original Will was produced from proper custody, which was more than 30 years old, but in the latter, a certified copy of Will was produced. In that context, the Supreme Court clearly held that the presumption under Section 90 of the Evidence Act arises in respect of an original document only. The view taken by the High Court in_ RSA No.1202 of 2018 20 _Munnalal that the Will in question, being one more than 30 years old, was duly executed and attested by the person by whom it was purported to have been executed and attested, based on Section 90 of the Evidence Act, was affirmed by the Privy Council. Further, in Munnalal's case, it was held that such a presumption under Section 90 of the Evidence Act could arise only in respect of an original document. These legal principles were quoted with approval in K.V.Subbaraju.”_ 18. It is to be noted that the learned Single Judge on finding that in **Bharpur Singh and Others v. Shamsher Singh** , is by a Bench of learned two Judges and it would not constitute binding precedent because a Larger Bench decision of the Supreme Court in **Munnalal v. Kashibai** was not brought to the attention of the learned Judges, while passing the judgment in **Bharpur Sigh Vs. Shamsher Sigh.** 19. So the learned Single Judge based on the observations by three Judge Bench in K.V. Subbaraju, found that the declaration of law in **Bharpur Singh and M.B. Ramesh** cannot be regarded as binding precedent under Article 141 of the Constitution of India. 20. The same principle was laid down by the Apex Court in **National Insurance Company Ltd. v. Pranay Sethi** RSA No.1202 of 2018 21 **[2017 (4) KLT 662 (SC)]** para No. 30 of which is relevant in this context is extracted, which reads thus: _30. In this context, we may also refer to Sundeep Kumar Bafna v. State of Maharashtra and another 34 which correctly lays down the principles that discipline demanded by a precedent or the disqualification or diminution of a decision on the application of the per incuriam rule is of great importance since without it certainty of law, consistency of rulings and comity of courts would became a costly causality. A decision or judgment can be per incuriam any provision in a statue, rule or regulation, which was not brought to the notice of the court. A decision or judgment can also be per incuriam if it is not possible to reconcile its ratio with that of a previously pronounced the judgment of a coequal or larger Bench. There can be no scintilla of doubt that an earlier decision of co-equal Bench binds the Bench of same strength. Though the judgment in Rajesh’s case was delivered on a later date, it had not apprised itself of the law stated in (2014) 16 SCC 623) Reshma Kumari (supra) but had been guided by Santosh Devi (supra). We have no hesitation that it is not a binding precedent on the co-equal Bench._ 21. So in the present case, I have already found that Ext.B2 Will has been produced from the proper custody. Ext.B2 Will itself would state that the testator clearly stated that she got two sons by name Padmanabhan and Vijayan. Padmanabhan and Vijayan are employed. The 1[st] defendant is their only sister and hence they also have full wish and desire to give the property to the 1[st] defendant and it is with their RSA No.1202 of 2018 22 consent also the property is giving absolutely to the 1[st] defendant without giving to them. 22. It has come out in evidence that, both the witnesses are no more and one among them is none other than the husband of the testator and the father of the plaintiff and the 1[st] defendant. Since none of them were alive the course open to the defendants is to prove the Will as per Section 69 of the Indian Evidence Act and accordingly Dw2 was examined. The testator is his grand mother's niece and he gave evidence to the effect that he is in acquaintance with the signatures of the testator and the two witnesses and he identified the signatures of the witnesses as well as that of the testator. But the trial court did not rely on the evidence of DW2, mainly for the reason that he stated that against the signatures he identified there are the names of the persons. But there is no specific question put to him as to whether it is because of the name against the signature that he identified the signatures. Merely because of an answer to a question as to whether there are names against persons signatures, it will not lead to an inference that it is because of that name that he identified the signatures. A specific question ought to have been put to DW2 RSA No.1202 of 2018 23 as to whether because of the names that he had identified the signatures. Such a question is not seem to have been put. Then it was discussed that he could not draw the signatures of the testator and the witnesses without seeing the signatures in Exts.B1 and B2. That is also not a justifiable reason to discard their evidence because only very few people can draw the signatures of others even if they know the signatures of the others . So the reasons for discarding the evidence of DW2 by the trial court is not seems to be reasonable. It is to be noted that the 1[st] Appellate Court originally set aside the judgment and decree and remanded the case to trial court and that matter was taken up before this Court. This Court set aside the order of remand and remitted the case back to the 1[st] Appellate Court to decide the matter. 23. It is true that the 1[st] Appellate Court accepted Ext.B2 Will drawing the presumption under Section 90 of the Indian Evidence Act alone and no discussion has been made with respect to Section 69 of the Indian Evidence Act. But I do not think that for that reason it is again to be sent back to the 1[st] Appellate Court for determining that issue especially because I do not find any reason to differ with the findings of RSA No.1202 of 2018 24 the 1[st] Appellate Court in drawing the presumption under Section 90 of the Indian Evidence Act with regard to the proof of execution of Ext.B2 Will. Moreover a remand can be made only in extreme cases (See **John Augustine v. M.R.Renjan ILR 2016 (3) Kerala 1021; Purushotham Reddy and Anr. v. Pratap Steels Limited 2002 SCC 686 : AIR 2002 SC** **771** 24. On re-appreciation of the facts, circumstances and evidence adduced and law involved, I am of the considered view that the execution of Ext.B2 Will has been proved by the 1[st] defendant and the 1[st] Appellate Court rightly held that the property is not partible and dismissed the suit. I do not find any substantial question of law emerging for consideration for entertaining the 2[nd] appeal. In the result, appeal stands dismissed confirming the judgment and decree passed by the first appellate court and suit dismissed. In the facts and circumstances, there is no order as to costs. **Sd/M.R.ANITHA JUDGE** SMF //TRUE COPY// PA TO JUDGE