Radha and others v. N. N. Subramanian and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN & THE HONOURABLE MR. JUSTICE A.M.BABU** **WEDNESDAY, THE 25TH DAY OF OCTOBER 2017/3RD KARTHIKA, 1939** ## **RFA.No. 67 of 2011 ( )** **----------------------AGAINST THE DECREE/JUDGMENT IN OS 1088/2007 of PRINCIPAL SUB COURT, ERNAKULAM DATED 27-01-2010** ## **APPELLANTS/PLAINTIFFS.:** **-----------------------------------** - **1. RADHA, AGED 63 YEARS, W/O.V.K.RAJAN & D/O.LATE NARAYANAN, SREENILAYAM, KATHRIKKADAVU,, KOCHI-682 017. [DIED]** **2. PREETHI, AGED 46 YEARS, D/O.V.K.RAJAN & LATE AMBIKA, SREENILAYAM, KATHRIKKADAVU,, KOCHI-682 017.** **3. PREMAN, AGED 45 YEARS, S/O.V.K.RAJAN &** **LATE AMBIKA, SREENILAYAM, KATHRIKKADAVU,, KOCHI-682 017.** **4. UNNIKRISHNAN, AGED 39 YEARS, S/O.V.K.RAJAN & LATE AMBIKA, SREENILAYAM, KATHRIKKADAVU,KOCHI-682 017.** **Addl. 5. V.K.RAJAN, SON OF KUNJAN, RESIDING AT SREENILAYAM, KATHRIKKADAVU, KOCHI-682 017.** **BY ADVS.SRI.V.M.KURIAN SRI.MATHEW B. KURIAN SRI.C.N.SREEKUMAR SRI.SABU P.JOSEPH SRI.K.T.THOMAS** ## **RESPONDENTS/DEFENDANTS.:** **--------------------------------------** **1. SRI.N.N.SUBRAMANIAN, AGED 58 YEARS, S/O.LATE NARAYANAN, NANDANATHTHUNDIYIL HOUSE,, CHAKKARAPARAMBU, KOCHI-19.** **2. SRI.N.N.SHANAVAS, AGED 54 YEARS, S/O.LATE NARAYANAN, NANDANATHTHUNDIYIL HOUSE,, CHAKKARAPARAMBU, KOCHI-19.** **3. LALITHA, AGED 61 YEARS, D/O.LATE NARAYANAN, THANGATTUPADOM, SHOBA ROAD,, VENNALA,, KOCHI-28.** 2 ## **R1,R2,R3. BY ADV. SRI.P.VISWANATHAN (B/O) R1,R2,R3 BY ADV. SRI.S.NITHIN GANESH** **THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 25-10-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **VPV** ## **P.N.RAVINDRAN & A.M.BABU, JJ.** =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= ## **R.F.A.No.67 of 2011** =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= ## **Dated this the 25[th] day of October, 2017** ## **JUDGMENT** ## _**A.M.Babu, J.**_ 1. The appellants are the plaintiffs. They have appealed against the dismissal of their suit for partition. 2. The case of the plaintiffs is summarised below: The first plaintiff and the defendants are the children of late Narayanan. Plaintiffs 2 to 4 are the children of Narayanan's predeceased daughter Ambika. Narayanan died intestate on 17.7.1986. The plaint schedule property belonged to Narayanan. It devolved upon his heirs on his death. The plaintiffs and defendants are thus co-owners of the plaint schedule property. Defendants 1 and 2 are not amenable for partition. They set up a false will. 3. The defendants filed written statement contending as under: The plaintiffs filed an earlier suit, O.S.No.686 of 2004, for getting the very same property partitioned. The said suit was included in the special list for trial on several occasions. But the plaintiffs failed to adduce evidence. Therefore that suit was dismissed for default. Their attempt to get it restored was not successful. It is not correct to say that Narayanan died intestate. He executed a will on 8.10.1984. The ## **R.F.A.No.67 of 2011** **-2-** same was registered. It was executed in the presence of witnesses. The plaint schedule property was bequeathed to defendants 1 and 2. A life estate in the property was created in favour of the wife of the testator. As both of them died, the plaint schedule property became the absolute property of defendants 1 and 2. The suit is therefore liable to be dismissed. 4. Both sides adduced evidence. PWs1 and 2 and DWs1 to 4 were examined. Exts A1 and A2, B1 to B9 and X1 to X3 were marked. 5. The learned trial judge dismissed the suit holding the will propounded by defendants 1 and 2 to be genuine. 6. We heard Sri.Sabu P.Joseph and Sri.P.Viswanathan who appear for the appellants and the respondents respectively. 7. The respondents had a contention that the trial of the suit was barred by _res judicata_ . Such a contention was taken in view of the dismissal of O.S.No.686 of 2004. That was a suit filed by the very same plaintiffs for the very same relief of partition. Admittedly that suit was not decided on merits. Therefore section 11 of the Code of Civil Procedure has no application. Even the bar under order IX rule 9 of the Code of Civil Procedure is not attracted inasmuch as the cause of action for a partition suit is a continuing one. We uphold and confirm the finding of the learned trial judge on issues 1 and 2. ## **R.F.A.No.67 of 2011** **-3-** 8. Admittedly the plaint schedule property belonged to Narayanan. Admittedly the plaintiffs and defendants are the natural heirs of Narayanan. Defendants 1 and 2 propound a will. If the will goes, the suit should be decreed as prayed for. The question crucial is therefore whether the will propounded by defendants 1 and 2 was executed by Narayanan. 9. The impugned judgment lacks proper discussion on the question of proof of the will. Only three sentences are stated in the impugned judgment to find its execution by Narayanan. The evidence of DW3, who allegedly attested the will, was accepted. The learned trial judge lost sight of the fact that two leading questions were put to DW3 in his examination-in-chief about the execution and attestation of the will. A reading of the impugned judgment even suggests that DW3 was not even cross-examined. The evidence of DW3 in crossexamination was not discussed. 10. The original will was not even produced before the court below. Instead, what was produced was a certified copy of the will. It was marked as Ext B3. The certified copy does not contain the signatures of the testator and the attestors. Therefore there was no purpose in producing and exhibiting Ext B3. 11. Ext X1 file was produced by DW2. Ext X1(b) is only a ## **R.F.A.No.67 of 2011** **-4-** photocopy of the original will kept by the Thammanam Service Cooperative Bank when the original was seized by the police in connection with a crime in respect of the very same will. The said crime case was registered at the instance of the plaintiffs. What was relied on by the trial court was Ext X1(b). The same was shown to DW3 to prove it. Ext X1(b) is only a photocopy of a registered document. A photocopy of a registered document is inadmissible in evidence. Section 65 of the Indian Evidence Act provides that secondary evidence could be given in what cases. Clause (f) of section 65 alone is important here. It states that secondary evidence of the existence, condition or contents of a document could be given when the original is a document of which a certified copy is permitted by the Evidence Act or by any other law in force in India to be given in evidence. It is provided further in section 65 that in the case of clause (e) or (f), a certified copy of the document, but no other kind of secondary evidence is admissible. Therefore there was a clear bar under section 65 of the Indian Evidence Act against admitting a photocopy of a registered document in evidence. In this connection we place reliance on **Kalyan Singh v. Smt. Chhoti (AIR 1990 SC 396)** . It has been held therein that an ordinary copy of a registered sale deed is not a secondary evidence. Ext X1(b) should not have been ## **R.F.A.No.67 of 2011** **-5-** admitted in evidence. It should not have been relied on. 12. The defendants filed I.A.No.361 of 2017 before this court under order XLI rule 27 of the Code of Civil Procedure requesting to receive the original will in evidence. The plaintiffs have filed I.A.No.284 of 2017 and produced certain documents including the filing sheet pertaining to the disputed will. The filing sheet is produced to prove that there are differences in the signatures of the testator allegedly put at the time of execution and allegedly put at the time of registration. Another document produced by the plaintiffs is a copy of the report of the expert who scrutinised the disputed signatures and the admitted signatures of the testator. We allow both the applications and receive them under order XLI rule 27 of the Code of Civil Procedure. 13. But the will needs proof. For that purpose the suit should be remanded to the court below. We do so. I.A.No.361 of 2017 and I.A.No.284 of 2017 and the documents produced shall be forwarded to the trial court along with the records after retaining copies of those applications and the documents produced along with those applications. The parties shall be free to adduce further evidence. The trial court shall decide the case untrammelled by anything stated in this order. 14. The appeal is allowed. The judgment impugned in the appeal **-6-** ## **R.F.A.No.67 of 2011** is set aside. The suit is remanded to the trial court for disposal anew. The parties shall appear in person or through counsel before that court on 20.11.2017. Being an old suit, all endeavours shall be taken to dispose of it as early as possible; at any rate, within a period of six months from 20.11.2017. Sd/- **P.N.RAVINDRAN JUDGE** Sd/- ## **A.M.BABU JUDGE** /TRUE COPY/ P.A. TO JUDGE ## **vpv**