RFA Nos.493/2012 & 465/2013

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **WEDNESDAY, THE 3[RD] DAY OF AUGUST 2022 / 12TH SRAVANA, 1944** **RFA NO. 493 OF 2012** **AGAINST THE JUDGMENT & DECREE IN OS 1188/2006 OF I ADDITIONAL SUB** ## **COURT, THRISSUR** ## **APPELLANT/PLAINTIFF:** KUMARI ALIAS MARY FRANCIS AGED 74 YEARS, D/O.LATE KUNNATH PAILY AND W/O.LATE CHETTIPUZHA PORINCHU, CHEMBUKKAVU VILLAGE, KIZHAKUMPATTUKARA DESOM, TRICHUR TALUK, NOW RESIDING AT BANGALORE. BY ADV SRI.K.P.SREEKUMAR ## **RESPONDENTS/DEFENDANTS:** 1 BABY AGED 72 YEARS, S/O.KUNNATH PAILY, PUTHEN VETTUVAZHI ROAD, CHEMBUKKAVU VILLAGE, TRICHUR TALUK, EAST FORT, (PIN-680 005). 2 ANNAKUTTY AGED 70 YEARS, S/O.KUNNATH PAILY, PUTHEN VETTUVAZHI ROAD, CHEMBUKKAVU VILLAGE, TRICHUR TALUK, EAST FORT, (PIN - 680 005). 3 CHANDRIKA AGED 68 YEARS, D/O.KUNNATH PAILY, PUTHEN VETTUVAZHI ROAD, CHEMBUKKAVU VILLAGE, TRICHUR TALUK, EAST FORT, (PIN - 680 005). 4 LISSY AGED 66 YEARS, D/O.KUNNATH PAILY, W/O.DR.CAKKOLA SUNNY, RESIDING AT GOSAIKKUNNU, KURIACHIRA, CHIYYARAM VILLAGE, TRICHUR TALUK, KURIACHIRA P.O., PIN-680 006 5 THANKAMONY,AGED 64 YEARS, D/O.KUNNATH PAILY, CHEMBUKKAVU VILLAGE, THRISSUR TALUK, PIN - 680 005. 6 THANKOM (WRONGLY SHOWN AS THANKAMMA IN THE CAUSE TITLE OF THE JUDGMENT) AGED 66 YEARS, D/O.LATE KUNNATH THOMAS, RFA Nos.493/2012 & 465/2013 2 AMBAKKADAN NAGAR, TRICHUR VILLAGE, TRICHUR POST OFFICE, PIN-680 001.(DIED) 7 POLY AGED 41 YEARS, S/O.LATE KUNNATH THOMAS, AMBAKKADAN NAGAR, TRICHUR VILLAGE, PIN - 680 001. (DIED) 8 ISSAC AGED 38 YEARS, S/O.LATE KUNNATH THOMAS, AMBAKKADAN NAGAR, TRICHUR VILLAGE, PIN-680 001 ADDL.R9 NEENA PAULY AGED 51 YEARS, W/O.LATE PAULY, KUNNATH PAPER MART, POST OFFICE LINK ROAD, ERNAKULAM - 682031. ADDL.R10 THOMAS PAUL KUNNATH, AGED 21 YEARS, S/O.LATE PAULY, KUNNATH PAPER MART, POST OFFICE LINK ROAD, ERNAKULAM - 682031. ADDL.R11 JOHN PAUL KUNNATH, AGED 21 YEARS, S/O.LATE PAULY, KUNNATH PAPER MART, POST OFFICE LINK ROAD, ERNAKULAM – 682031. * THE LEGAL HEIRS OF DECEASED R7 ARE IMPLEADED IN THE PARTY ARRAY AS ADDITIONAL R9, VIDE ORDER DATED 7/6/2022 IN I.A.NO.2/2021 AND AS ADDITIONAL R10 AND R11 VIDE ORDER DATED 7/6/22 IN I.A.NO.5/2021. * THE 8TH RESPONDENT IS RECORDED AS THE LEGAL REPRESENTATIVE OF DECEASED R6, VIDE ORDER DATED 07/06/2022 IN I.A.NO.4/2021 BY ADVS. SRI.N.AJITH FOR R1 & R7 P.B.KRISHNAN FOR R1,R2, R4,R5,R6,R7,R8 & ADDL.R9 TO R11 SMT.GEETHA P.MENON FOR R1 & R7 SRI.P.B.SUBRAMANYAN FOR R1 , R7 & R9 THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON 03.08.2022, ALONG WITH RFA.465/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: RFA Nos.493/2012 & 465/2013 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **WEDNESDAY, THE 3[RD] DAY OF AUGUST 2022 / 12TH SRAVANA, 1944 RFA NO. 465 OF 2013 AGAINST THE JUDGMENT & DECREE IN OS 1416/2009 OF II ADDITIONAL SUB COURT,THRISSUR** ## **APPELLANT/PLAINTIFF:** KUMARI @ MARY FRANCIS AGED 72 YEARS D/O.LATE KUNNATH PAILY AND W/O.LATE CHETTUPUZHA PORINCHU, CHEMBUKAVU VILLAGE, KIZHAKKUMPATTUKARA DESOM, TRICHUR TALUK, NOW RESIDING AT BANGALORE. BY ADV SRI.K.P.SREEKUMAR ## **RESPONDENTS/DEFENDANTS:** 1 ANNAKUTTY AGED 75 YEARS D/O.KUNNATH PAILY, KIZHAKKUMPATTUKARA DESOM, CHEMBUKAVU VILLAGE, TRICHUR TALUK - 680 005. 2 CHANDRIKA AGED 70 YEARS D/O.KUNNATH PAILY, KIZHAKKUMPATTUKARA DESOM, CHEMBUKAVU VILLAGE, TRICHUR TALUK - 680 005. 3 BABY AGED 68 YEARS D/O.KUNNATH PAILY, KIZHAKKUMPATTUKARA DESOM, CHEMBUKAVU VILLAGE, TRICHUR TALUK - 680 005. 4 LISSY, AGED 65 YEARS D/O.KUNNATH PAILY, KIZHAKKUMPATTUKARA DESOM, CHEMBUKAVU VILLAGE, TRICHUR TALUK - 680 005. RFA Nos.493/2012 & 465/2013 4 5 THANKAMANI AGED 63 YEARS D/O.KUNNATH PAILY, KIZHAKKUMPATTUKARA DESOM, CHEMBUKAVU VILLAGE, TRICHUR TALUK - 680 005. 6 THANKAM AGED 61 YEARS W/O.KUNNATH THOMAS, KIZHAKKUMPATTUKARA DESOM, CHEMBUKAVU VILLAGE, TRICHUR TALUK - 680 005.(DIED) 7 PAULY S/O.KUNNATH THOMAS, KIZHAKKUMPATTUKARA DESOM, CHEMBUKAVU VILLAGE, TRICHUR TALUK - 680 005.(DIED) 8 ISAC S/O.KUNNATH THOMAS, KIZHAKKUMPATTUKARA DESOM, CHEMBUKAVU VILLAGE, TRICHUR TALUK - 680 005. 9 SOOSANNA AGED 64 YEARS D/O.KUNNATH CHERUKUTTY, RESIDING AT NEAR KIZHAKKUMPATTUKARA BISHOP PALACE, CHEMBUKAVU VILLAGE, TRICHUR TALUK - 680005 10 THOMAS AGED 62 YEARS S/O.KUNNATH CHERUKUTTY, RESIDING AT NEAR KIZHAKKUMPATTUKARA BISHOP PALACE, CHEMBUKAVU VILLAGE, TRICHUR TALUK - 680005 11 NAYOMI AGED 59 YEARS D/O.KUNNATH CHERUKUTTY, RESIDING AT NEAR KIZHAKKUMPATTUKARA BISHOP PALACE, CHEMBUKAVU VILLAGE, TRICHUR TALUK - 680005 12 PAVU AGED 71 YEARS S/O.KUNNATH CHERUKUTTY, RESIDING AT NEAR KIZHAKKUMPATTUKARA BISHOP PALACE, CHEMBUKAVU VILLAGE, TRICHUR TALUK - 680005 13 ALPHONSA RFA Nos.493/2012 & 465/2013 5 AGED 52 YEARS D/O.KUNNATH FRANCIS, RESIDING AT NEAR KIZHAKKUMPATTUKARA BISHOP PALACE, CHEMBUKAVU VILLAGE, TRICHUR TALUK - 680005 14 EMAN AGED 50 YEARS S/O.KUNNATH FRANCIS, RESIDING AT NEAR KIZHAKKUMPATTUKARA BISHOP PALACE, CHEMBUKAVU VILLAGE, TRICHUR TALUK - 680005. 15 EBEL AGED 46 YEARS S/O.KUNNATH CHERUKUTTY, RESIDING AT NEAR KIZHAKKUMPATTUKARA BISHOP PALACE, CHEMBUKAVU VILLAGE, TRICHUR TALUK – 680005. 16 LILLY AGED 79 YEARS W/O.KUNNATH JOSEPH, AYYANTHOLE VILLAGE, AYYANTHOLE DESOM, TRICHUR TALUK – 680003. 17 RAJI AGED 54 YEARS D/O.KUNNATH JOSEPH, AYYANTHOLE VILLAGE, AYYANTHOLE DESOM, TRICHUR TALUK 680003. 18 LISSA AGED 47 YEARS D/O.KUNNATH JOSEPH, AYYANTHOLE VILLAGE, AYYANTHOLE DESOM, TRICHUR TALUK – 680003. 19 JOY AGED 50 YEARS S/O.KUNNATH JOSEPH, AYYANTHOLE VILLAGE, AYYANTHOLE DESOM, TRICHUR TALUK – 680003. 20 THOMAS AGED 48 YEARS S/O.KUNNATH JOSEPH, AYYANTHOLE VILLAGE, AYYANTHOLE DESOM, TRICHUR TALUK -680003. 21 KOCHANTHONY AGED 82 YEARS RFA Nos.493/2012 & 465/2013 6 S/O.KUNNATH THOMA, AYYANTHOLE VILLAGE, AYYANTHOLE DESOM, TRICHUR TALUK – 680003. 22 ROSY AGED 72 YEARS W/O.KUNNATH JOHNY, RESIDING AT NEHRU NAGAR, OLLUR VILLAGE, TRICHUR TALUK. 23 THOMAS AGED 49 YEARS S/O.KUNNATH JOHNY, RESIDING AT NEHRU NAGAR, OLLUR VILLAGE, TRICHUR TALUK – 680306. 24 JAMES AGED 47 YEARS S/O.KUNNATH JOHNY, RESIDING AT NEHRU NAGAR, OLLUR VILLAGE, TRICHUR TALUK – 680306. 25 JASMINE AGED 44 YEARS D/O.KUNNATH JOHNY, RESIDING AT NEHRU NAGAR, OLLUR VILLAGE, TRICHUR TALUK – 680306. 26 DR.KURIAN AGED 64 YEARS KUNNATH VEETTIL, RESIDING AT EAST FORT ANCHANGADI, CHEMBUKAVU VILLAGE, TRICHUR TALUK - 68005. 27 KUNJETHY AGED 68 YEARS W/O.KUNNATH POPPY, KIZHAKUMPATTUKARA DESOM, CHEMBUKAVU VILLAGE, TRICHUR TALUK – 68005. 28 FRANCIS AGED 54 YEARS S/O.KUNNATH POPPY, KIZHAKUMPATTUKARA DESOM, CHEMBUKAVU VILLAGE, TRICHUR TALUK – 68005. ADDL.R29 SMT.NEENA PAULY AGED 51 YEARS W/O LATE PAULY, KUNNATH PAPER MART, POST OFFICE LINK ROAD, ERNAKULAM. 682031 RFA Nos.493/2012 & 465/2013 7 * ADDL.R9 IS IMPLEADED AS HTE LEGAL HEIR OF DECEASED 7TH RESPONDENT VIDE ORDER DATED 7/6/2022 IN I.A.NO.2/2021. ADDL.R30 THOMAS PAUL KUNNATH, AGED 21 YEARS, S/O. LATE PAULY, KUNNATH PAPER MART, POST OFFICE LINK ROAD, ERNAKULAM- 682031. ADDL.R31 JOHN PAUL KUNNATH, AGED 21 YEARS, S/O. LATE PAULY, KUNNATH PAPER MART, POST OFFICE LINK ROAD, ERNAKULAM -682031. * ADDL.R30 & 31 ARE IMPLEADED AS THE LEGAL HEIRS OF DECEASED 7TH RESPONDENT VIDE ORDER DATED 7/6/2022 IN I.A.NO.6/2021. *IT IS RECORDED THAT THE 6TH RESPONDENT DIED AND 8TH RESPONDENT IS THE LEGAL REPRESENTATIVE OF DECEASED R6 VIDE ORDER DATED 7/6/2022 IN MEMO DATED 29/9/2021 IN R.F.A.NO.465/2013. BY ADVS. P.B.KRISHNAN FOR R3, R4, R7, R8, R14, R29, R30 & R31 SRI.N.AJITH FOR R3, R4, R7, R8, R14, R26 SMT.GEETHA P.MENON FOR R3, R4, R7, R8, R14, R26 SRI.P.B.SUBRAMANYAN FOR R3, R4, R7, R8, R14, R26, R29 THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON 03.08.2022, ALONG WITH RFA.493/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: RFA Nos.493/2012 & 465/2013 8 ## **CR** ## **JUDGMENT** The defendants in a suit for partition contested the suit by relying on three Wills - Exs.B1, B3 and B4 as that of their parents – father Paul and mother Sara. All these Wills were found genuine by the trial court and consequently, the suit for partition was dismissed, against which the plaintiff came up. 2. Ext.B1 is a registered Will dated 2/11/1971 jointly executed by Paul and Sara. The suit was filed after the lapse of more than 30 years. Necessarily, the question came up for consideration is when a Will or Codicil is produced from proper custody having an oldage of more than 30 years, is it permissible to draw presumption as to its execution, whether it is necessary to summon atleast one of the attesting witnesses in proof of its execution and when the testament is found to be more than 30 years oldage and produced from a proper custody, whether the propounder can wriggle out of the liability to prove RFA Nos.493/2012 & 465/2013 9 the testament in accordance with the mandate under Section 68 of the Act by resorting to the presumption that can be drawn under Section 90 of the Indian Evidence Act. The learned counsel for the appellant/plaintiff relied on the decision in **Bharpur Singh & Ors v. Shamsher Singh (2009 (3) SCC 687)** in support of his argument that there cannot be any application of Section 90 of the Evidence Act pertaining to a Will or testament irrespective of whether it is registered or not. But it is against the rationale (ratio) applied by the Apex Court in several decisions including the decision rendered by a Constitution Bench. Hence, it is necessary to ascertain the principle of binding precedent especially when contrary views were taken by a Full Bench and a Division Bench of this Court. 3. The issue came up before the Privy Council as early as in the year 1947 in **Munnalal v. Mt. Kashibai (AIR 1947 PC 15),** wherein it was held that the execution and attestation of a Will of more than 30 years old, when produced from proper custody, can be presumed. Later on, a three Judge Bench of the Apex Court had affirmed the legal 10 RFA Nos.493/2012 & 465/2013 position in **Kalidindi Venkata Subbaraju & Ors. v. Chintalapati Subbaraju & Ors. (AIR 1968 SC 947).** It was followed by this Court in **Narayanan Radhakrishna Menon v. Narayanan Sukumara Menon (2018 (2) KLT 553)** . Subsequently, it was settled by a Constitution Bench of the Apex Court in **Central Board of Dawoodi Bohra Community and Another v. and** **State of Maharashtra and Another (AIR 2005 SC 752)** that a decision delivered by a larger Bench is binding on any subsequent Bench of lesser or co-equal strength. It is further laid down that a Bench of lesser strength cannot doubt the correctness of the view of the law taken by a Bench of larger strength and summed up as follows:- _“The law laid down by Supreme Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or co-equal strength. A Bench of lessor quorum cannot doubt the correctness of the view of the law taken by a Bench of larger quorum. In case of doubt all that the Bench of lesser quorum can do is to invite the attention of the Chief Justice and request for the matter being placed for hearing before a Bench of larger quorum than the Bench whose decision has come up for consideration. It - will be open only for a Bench of co equal strength to express an opinion doubting the correctness of the view taken by the earlier - Bench of co equal strength, whereupon the_ RFA Nos.493/2012 & 465/2013 11 _matter may be placed for hearing before a Bench consisting of a quorum larger than the one which pronounced the decision laying down the law the correctness of which is doubted.”_ (emphasis supplied) 4. It has been further reiterated by a three Judge Bench of the Apex Court in **New India Assurance Company Ltd.** ## **v. Hilli Multipurpose Cold Storage Pvt. Ltd. (AIR 2016 SC** **86)** by holding that the judgment delivered earlier in point of time shall prevail over the judgment rendered by a coequal Bench on a later point of time. 5. The abovesaid principle is subject to the exception that when in a subsequent pronouncement, after taking into consideration the previous judgment, re-defines or explains the width of principles laid down in the previous judgment, the subsequent pronouncement has to be followed **(M.Natarajan v. State [(2008) 8 SCC 413])** . It must be understood that there is no scope to re-write or reconsider the legal position earlier laid down by a larger Bench or a co-equal Bench, except for the purpose of explaining the width and length of the principle laid down in the previous judgment. Very recently, another RFA Nos.493/2012 & 465/2013 12 Constitution Bench of the Apex Court in **Dr. Shah Faesal and Ors. v. Union of India and Another [(2020) 4 SCC 1]** had reiterated the legal position by explaining the rule of _per incuriam_ , relevancy and binding precedent of _ratio decidendi_ laid down in an earlier judgment of co-equal Bench or a larger Bench. There will not be any binding precedent regarding _obiter dicta_ . The Constitution Bench of the Apex Court had considered in this context, the doctrine of binding precedent with its utmost importance in the administration of judicial system by referring yet another five Judge Bench of the Apex Court in **Chandra Prakash v. State of U.P. [(2002) 4 SCC 234]** and also the law laid down in **National Insurance Co. Ltd.v. Pranay Sethi (2017) 16 SCC 680 : (2018) 3 SCC (Civ) 248 : (2018) 2 SCC (Cri) 205].** The view that the subsequent decision shall be declared _per incuriam_ only if there exists a conflict in the ratio decidendi of the earlier judgments has got approval by a five-Judge Bench of the Apex Court in _**Punjab Land Development & Reclamation Corpn. Ltd.**_ **v.** _**Labour Court**_ **(1990) 3 SCC 682)** . RFA Nos.493/2012 & 465/2013 13 6. But, without noticing the law laid down by the Constitution Bench of the Apex Court in **Central Board of Dawoodi Bohra Community** 's case (supra), a Division Bench of this Court in **Sampath S. Pawar v. Ibrahim (2013 (3) KLT 722)** had laid down the law that when conflicting views are taken by Benches of co-equal strength, the decision later in point of time will prevail over the earlier one by referring to a Full Bench decision of this Court in **Raman Gopi v. Kunju Raman Uthaman (2011 (4) KLT 458 (FB)}** . In fact, the abovesaid contrary view was taken by the Full Bench of this Court after referring the legal position laid down by the Constitution Bench in **Central Board of Dawoodi Bohra Community** 's case (supra). But the reference was only for the purpose of binding precedents of the larger Benches over the Benches of lesser strength. It was not referred in relation to “ _ratio decidendi”_ settled with respect to conflicting decision rendered by co-equal Benches. A mere citing of a decision or a legal position settled in an earlier judgment, not for the purpose either to follow or dissent, cannot be said to have referred so as to exclude RFA Nos.493/2012 & 465/2013 14 the same from the mischief of “ _per incuriam decis_ ”. In order to avoid the mischief, the “ _ratio decidendi_ ” settled on a particular legal issue by the earlier larger or coequal Bench must be referred in relation to that particular “ _ratio decidendi_ ”. Hence, the legal position laid down by the Full Bench without referring to the law laid down in **Central Board of Dawoodi Bohra Community** 's case (supra) in relation to conflicting decision and the binding precedents of co-equal Benches would stand “ _per incuriam decis”_ . The decision rendered by the Division Bench in **Sampath** 's case (supra) by following the Full Bench decision in **Raman Gopi** 's case (supra) without noticing the decision of the Constitution Bench in **Central Board of Dawoodi Bohra Community** 's case (supra) also would stand _per incuriam decis_ . So also, the decision rendered by a Single Bench of this Court in **Hameed v. State of Kerala 2008 (1) KLT 534)** by taking a contrary view, though referred the decision of the Constitution Bench of the Apex Court in **Central Board of Dawoodi Bohra Community** 's case (supra) cannot be held good law. RFA Nos.493/2012 & 465/2013 15 7. The observation made by the Apex Court in **Official** **Liquidator v. Dayanand and Others [(2008) 10 SCC 1]** assumes importance at this juncture. The relevant portion is extracted below for reference: “There have been several instances of different Benches of the High Court not following the judgments/orders of coordinate and even larger Benches. In some cases, the High Courts have gone to the extent of ignoring the law laid down by this Court without any tangible reason. Likewise, there have been instances in which smaller Benches of this Court have either ignored or bypassed the ratio of the judgments of the larger Benches including the Constitution Benches. These cases are illustrative of non-adherence to the rule of judicial discipline which is _sine qua non_ for sustaining the system.” 8. Further, in view of the legal position settled by the Constitution Bench of the Apex Court in **Central Board of Dawoodi Bohra Community** 's case (supra) and **Dr.Shah** **Faesal** 's case (supra), the earlier decision rendered by a Full Bench of this Court in **Joseph v. Special Tahsildar (2001 (1) KLT 958 (FB))** holding that when two decisions of co-equal Benches of the Apex Court are conflicting, the RFA Nos.493/2012 & 465/2013 16 decision later in time to be binding, cannot be held good law **.** The decision rendered by the Apex Court in **Bharpur Singh** 's case (supra) without noticing the earlier legal position settled by a larger Bench (three Judge Bench) of the Apex Court in **Kalindindi Venkata Subbaraju** 's case (supra), hence cannot be held to have binding precedent. 9. The original of the document, though not marked, was produced from the proper custody and it is having an oldage of more than 30 years, hence presumption applies. There is failure on the part of the plaintiff to rebut the presumption and no satisfactory evidence was adduced in that behalf. Further, in the instant case, though the original was produced, only a certified copy of the Will was marked as Ext.B1 through DW2, who is the son of one of the attesting witnesses. He was summoned to prove the signature affixed as that of his father as an attesting witness, after his death. When no attesting witness is available for the purpose of proving the due execution of the Will in question either due to death or unsoundness of mind or incapability of giving evidence, the parties would RFA Nos.493/2012 & 465/2013 17 stand governed by the succeeding section, Section 69 of the Indian Evidence Act and would stand relieved from the rigour of summoning atleast one of the attesting witnesses to prove its execution as mandated under Section 68 of the Act. Further, under the succeeding Section – Section 69 of the Act, the requirement and the extent of proof is to show that atleast attestation of one of the attesting witnesses is in his handwriting and that the signature of the person executing the document is in the handwriting of that person. It is not at all necessary to prove and establish the signatures found affixed as that of both/all the attesting witnesses, when the case falls under Section 69 of the Act. The oral evidence tendered by DW2 by admitting the signature affixed as that of his father, one of the attesting witnesses to the document and the fact that the original document, which is of more than 30 years oldage, was produced from the proper custody, would sufficiently discharge the initial burden that lies on the propounder, especially when nothing was brought out to discredit his RFA Nos.493/2012 & 465/2013 18 evidence. Apart from the examination of DW2, Ext.X1 extract of thumb impression register was also summoned through the Sub-Registrar – DW3. The Will was registered while one of the testators was hospitalized. Nothing was brought out to show any mental ailment, incapacity or unsoundness of mind suffered by any of the testators, the father and mother. Necessarily, the suit for partition by the plaintiff, who is not a legatee under the Will, will not stand. Both the appeals hence fail, dismissed. No costs. Sd/- ## **P.SOMARAJAN** ## **JUDGE** SV