R.S.A.No.1032 & 1058 of 2009

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 29TH MARCH 2010 / 8TH CHAITHRA 1932 RSA.No. 1032 of 2009() ---------------------AS.34/2006 of ADDL.DISTRICT COURT (ADHOC)-I, KOTTAYAM OS.154/2002 of MUNSIFF COURT, ETTUMANOOR .................... APPELLANTS/APPELLANTS/DEFENDANTS 6 TO 13: ----------------------------------------------- 1. CHINNAMMA, W/O.LATE CHACKO, KUZHIATHIL HOUSE, CHERUVANDOOR KARA, PEROOR VILLAGE, ETTUMANOOR. 2. ALICE, D/O.CHACKO, KUZHIATTIL HOUSE, CHERUVANDOOR KARA, PEROOR VILLAGE, ETTUMANOOR. 3. CYRIAC, S/O.CHACKO, KUZHIATTIL HOUSE, CHERUVANDOOR KARA, PEROOR VILLAGE, ETTUMANOOR. 4. SR.MARY @ JANET, D/O.CHACKO, AZZEEZI BHAVAN, SREEKARYAM, THIRUVANANTHAPURAM. 5. LIZZAMMA @ ANNAKKUTTY, D/O.CHACKO, INCHIPPARAMBIL HOUSE, KOODALLOOR KARA, KIDANGOOR VILLAGE. 6. JAMES, S/O.CHACKO, PUNNAKAYALIL HOUSE, CHERUVANDOOR KARA, PEROOR VILLAGE, ETTUMANOOR. 7. ANTONY, S/O.CHACKO, KUZHIYATTIL HOUSE, CHERUVANDOOR KARA, PEROOR VILLAGE, ETTUMANOOR. 8. SIBI, S/O.CHACKO, KUZHIYATTIL HOUSE, CHERUVANDOOR KARA, PEROOR VILLAGE, ETTUMANOOR. BY ADV. SRI.M.P.MADHAVANKUTTY RESPONDENT(S): RESPONDENTS/PLAINTIFFS & DEFENDANTS 1-5: ------------------------------------------------------- 1. KURIAN, S/O.KURIAN, PUNNAKKALAYIL HOUSE, CHERUVANDOOR KARA, PEROOR VILLAGE. RSA NO.1032/2009 2 2. THRESSIAMMA, D/O.KURIAN, PUNNAKKALAYIL HOUSE, CHERUVANDOOR KARA, PEROOR VILLAGE. 3. SR.MARIA,PUNNAKALAYIL HOUSE CHERUVANDOOR KARA, PEROOR VILLAGE. 4. P.K.JOSEPH, S/O.KURIAN, PUNNAKALAYIL HOUSE CHERUVANDOOR KARA, PEROOR VILLAGE. 5. THRESSIAMMA, PUNNAKALAYIL, VELLIKKUNNEL, CHERUVANDOOR KARA, PEROOR VILLAGE. 6. CYRIAC, S/O.MATHAI, PUNNAKALAYIL, VELLIKKUNNEL,CHERUVANDOOR KARA, PEROOR VILLAGE. 7. JASMIN @ KUNJUMOL, D/O.MATHAI, PUNNAKALAYIL, VELLIKKUNNEL, CHERUVANDOOR KARA, PEROOR VILLAGE. 8. DENNIECE, S/O.MATHAI, PUNNAKALAYIL, VELLIKKUNNEL, CHERUVANDOOR KARA, PEROOR VILLAGE. 9. SHARLETT, S/O.MATHAI, PUNNAKALAYIL, VELLIKKUNNEL, CHERUVANDOOR KARA, PEROOR VILLAGE. ADV. SRI.MATHEW JOHN FOR R1 SRI.AJEESH K.SASI FOR R1 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 29/03/2010, ALONG WITH RSA NO. 1058 OF 2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **THOMAS P. JOSEPH, J.** **-------------------------------------R.S.A.No.1032 & 1058 of 2009 -------------------------------------Dated this the 29[th] day of March, 2010.** ## **JUDGMENT** Admit. Respondent No.1 in R.S.A.No.1032 of 2009 who is the sole respondent in R.S.A.No.1058 of 2009 appear through counsel. Respondent Nos.2 to 9 in R.S.A.No.1032 of 2009 are served. There is no response for them. Following substantial questions of law are framed for a decision: i. Have not the courts below gone wrong in accepting Ext.A9 as a valid cancellation of Ext.B4, Will dated 10.6.1987 and deciding the rights of parties accordingly? ii. Have not the courts below gone wrong in holding that defendant Nos.6 to 13 have not perfected title by adverse possession and limitation as regards item No.2 in O.S.No.114 of 2002? iii. Have not the courts below gone wrong in the allotment of shares as regards item No.4 in O.S.No.154 of 2002? **RSA Nos.1032 & 1058/2009** 2 Since the counsel appearing on both sides have given me copies of depositions of the witnesses and the relevant documents and considering the manner in which I proposed to dispose of these Second Appeals it was not necessary to call for records from the courts below and hence I have not done so. Parties are referred to as plaintiffs and defendants as in O.S.No.154 of 2002. 2. R.S.A.No.1032 of 2009 arises from the common judgment and decree to the extent it concerned A.S. No.34 of 2006 which arose from O.S.No.154 of 2002, for partition. R.S.A.No.1058 of 2009 arises from the common judgment and decree to the extent it concerned A.S.No.31 of 2006 arising from O.S.No.114 of 2002 which is a suit for declaration of title by adverse possession and limitation and for prohibitory injunction. 3. It is not disputed that properties which are the subject matter of these suits belonged to the late Kurian Mathai and his wife(plaintiff No.2 in O.S.No.154 of 2002 and defendant No.2 in O.S.No.114 of 2002). Chacko Mathai is the pre-deceased son of the late Kurian Mathai and plaintiff No.2 in O.S.No.154 of 2002. Defendant Nos.6 to 13 in O.S.No.154 of 2002 (plaintiffs in O.S.No.114 of 2002) are legal heirs of the said Chacko Mathai. Defendant Nos.1 to 5 in O.S.No.114 of 2002 are the wife and children of another predeceased son of Kurian Mathai and plaintiff No.2 in O.S.No.154 of 2002. In respect of item No.1 in O.S.Nos.154 of 2002 and 114 of 2002 the said Kurian Mathai and plaintiff No.2 in O.S.No.154 of 2002 executed Ext.B4, registered Will **RSA Nos.1032 & 1058/2009** 3 dated 10.6.1987 bequeathing the said item to the said Chacko Mathai. Kurian Mathai died on 18.2.2001. In respect of the said item, defendant Nos.6 to 13 in O.S.No.154 of 2002 who are plaintiffs in O.S.No.114 of 2002 claimed title and possession of half share pursuant to the death of Kurian Mathai on 18.2.2001 on the strength of the said Will. So far as item No.2 in O.S.No.114 of 2002 is concerned defendant Nos.6 to 13 in O.S.No.154 of 2002 as plaintiffs in O.S.No.114 of 2002 claimed title and possession as per Ext.B5, an agreement allegedly executed by the said Kurian Mathai in favour of late the Chacko Mathai on 16.4.1968. Plaintiffs in O.S.No.154 of 2002 would say that so far as item No.1 in that suit (which is also item No.1 in O.S.No.114 of 2002) is concerned Ext.B4, Will was revoked by Kurian Mathai and plaintiff No.2 (defendant No.2 in O.S.No.114 of 2002) as per Ext.A9, cancellation deed dated 23.4.1995 and hence legal heirs of the late Chacko Mathai could acquire no right over the suit property. It is also their contention that after Ext.A9, plaintiff No.2 (defendant No.2 in O.S.No.114 of 2002) executed Ext.A2, release deed dated 30.4.2002 in favour of plaintiff No.1 (defendant No.1 in O.S.No.114 of 2002) concerning her half share in item No.1 and her 1/3[rd] share in the remaining half share of the late Kurian Mathai as one of the legal heirs of the said Kurian Mathai. Item No.2 in O.S.No.154 of 2002 is the share thus plaintiff No.2 (defendant No.2 in O.S.No.114 of 2002) released in favour of plaintiff No.1 in O.S.No.154 of 2002 and item No.3 in O.S.No.154 of 2002 is the remaining share which is available for partition among the legal heirs of Kurian Mathai and **RSA Nos.1032 & 1058/2009** 4 which according to the plaintiffs in O.S.No.154 of 2002 is partiable among said legal heirs. Parties went into evidence on the strength of the above pleadings. Trial court found that Ext.B4, Will executed by the late Kurian Mathai and plaintiff No.2 (defendant No.2 in O.S.No.114 of 2002) has been validly cancelled as per Ext.A9 following which and consequent to the death of Kurian Mathai on 18.2.2001, plaintiff No.2 (defendant No.2 in O.S.No.114 of 2002) has released her right in plaint schedule item No.1 in favour of plaintiff No.1 in O.S.No.154 of 2002 and hence only the remaining share (item No.3 in O.S.No.154 of 2002) alone is partiable among the legal heirs of Kurian Mathai. So far as item No.4 in O.S.No.154 of 2002 is concerned, it is a paddy filed measuring 40.5 cents regarding partiability of which there is no contest by either side and hence trial court gave preliminary decree for partition of that item in accordance with the law of succession. What remained was item No.2 in O.S.No.114 of 2002. Learned Munsiff found that even if Ext.B5, agreement said to have been executed by the late Kurian Mathai is accepted, since Chacko Mathai, predecessor-in-interest of defendant Nos.6 to 13 (plaintiffs in O.S.No.114 of 2002) came into possession of the said item under a permission granted by Kurian Mathai as per Ext.B5 and that possession continued without any assertion of hostile title, question of defendant Nos.5 to 13 (plaintiffs in O.S.No.114 of 2002) claiming title over said item by adverse possession and law of limitation did not arise. Accordingly O.S.No.114 of 2002 was dismissed and in O.S.No.154 of 2002 partition of item Nos.3 and 4 (in the judgments and **RSA Nos.1032 & 1058/2009** 5 decree of the courts below it is wrongly stated as item Nos.1 and 4. It is admitted by both sides that partition ordered is of item Nos.3 and 4) as prayed for was granted. First appellate court has confirmed the findings and the ultimate decision of the learned Munsiff. Hence the Second Appeals on the substantial questions of law which I have framed above. It is contended by learned counsel for appellants/plaintiffs in O.S.No.114 of 2002 and defendant Nos.6 to 13 in O.S.No.154 of 2002 that finding of the courts below as to the legality and acceptability of Ext.A9, cancellation deed is erroneous, it is not executed as required under Section 70 of the Succession Act (for short, “the Act”) and hence Ext.B4, Will should prevail in which case (plaintiff No.2 in O.S.No.154 of 2002 who is defendant No.2 in O.S.No.114 of 2002 died pending suit) absolute owners of item No.1 in both the suits are defendant Nos.6 to 13 in O.S.No.154 of 2002 (plaintiffs in O.S.No.114 of 2002). Learned counsel has placed reliance on the decision of this Court in **Raveendran Nair v. Valsala** **Devi (2001 (3) KLT S.N.No.84 (page No.63))** . It is also the argument of learned counsel as per Section 70 of the Act a document cancelling the Will must be attested as in the case of a Will. But going by the evidence of PWs 7 to 9 it is seen that there is no proper attestation of Ext.A9. It is also the contention of learned counsel that there is no evidence proving attestation and execution of Ext.A9 before the Registrar as revealed from the evidence of DW2 and the fact that Ext.B4, original Will was produced by defendant Nos.6 to 13 in O.S.No.154 of 2002 (plaintiffs in O.S.No.114 of 2002) during the trial of the case **RSA Nos.1032 & 1058/2009** 6 which meant that the original Will was not even produced before the Registrar for cancellation as per Ext.A9. Learned counsel therefore prayed that finding of the trial court as to Ext.A9 may be reversed. So far as item No.2 of O.S.No.114 of 2002 is concerned learned counsel would say that finding of the courts below that defendant Nos.6 to 13 (plaintiffs in O.S.No.114 of 2002) have not perfected title by adverse possession and limitation is not sound, going by the evidence on record. It is the further argument of learned counsel that so far as item No.4 in O.S.No.154 of 2002 is concerned, allotment of share made by the trial court and accepted by the first appellate court is erroneous and at any rate that required modification. Learned counsel for respondents would contend that so far as finding as to Ext.A9 is concerned, it is a decision on facts based on the evidence on record and hence no substantial question of law is involved. As regards item No.2 in O.S.No.114 of 2002 is concerned, learned counsel submits that in so far as there is no plea or evidence that defendant Nos.6 to 13 (plaintffs in O.S.No.114 of 2002) if at all are in possession of the said item, it was asserting any hostile title as against other legal heirs who are entitled to share, question of their perfecting title by adverse possession did not arise. So far as item No.4 in O.S.No.154 of 2002 is concerned, learned counsel would say that consequent to the death of plaintiff No.2 in O.S.No.154 of 2002 pending suit shares have to be allotted in accordance with the law of succession applicable. 4. Ext.B4, Will is admitted by the parties. Ext.A9 is the cancellation deed dated 24.4.1995. Learned counsel for defendant Nos.6 to 13 in **RSA Nos.1032 & 1058/2009** 7 O.S.No.154 of 2002 (plaintiffs in O.S.No.114 of 2002) would say that Ext.A9 does not indicate the intention of the executants of Ext.B4 to cancel that Will and hence Ext.A9 does not satisfy the requirement of Section 70 of the Act. It is for the said purpose that learned counsel has placed reliance on the decision (referred supra). Under Section 70 of the Act, no unprivileged Will or codicil nor any part thereof shall be revoked otherwise than by marriage, or by another Will or codicil “or by some writing declaring an intention to revoke the same and executed in the manner in which an unprivileged Will is herein before required to be executed” or, in other manner as referred to in the said provision. In this case, I am concerned with the question whether writing contained in Ext.A9 is sufficient to declare intention of the executants of Ext.B4 for its cancellation. For that, a reference to Ext.A9 is relevant and necessary. Frills and embroideries excluded, Ext.A9 states that Ext.B4, Will was not intended to take effect as unanimously decided by the executants of Ext.A9 and in accordance with that decision they have executed Ext.A9 and cancelled Ext.B4. It is also stated in Ext.A9 that the said deed is executed in accordance with their free will and pleasure. Ext.A9 further states that so far as no other dispossession (in future) is made by the executants in respect of the property referred to therein, it is to be inherited by their legal heirs after their death. I am unable to accept the argument of learned counsel that Ext.A9 does not express the intention of its executants to cancel Ext.B4. It is expressly stated in Ext.A9 that the executants intended and wanted to cancel Ext.B4 and they have done so. Therefore the **RSA Nos.1032 & 1058/2009** 8 first limb of argument concerning Ext.A9 has to fail. 5. Now as to the lack of proper attestation of Ext.A9 raised by learned counsel, PWs 7 and 8 are attestors in Ext.A9 and PW9 is the scribe. PWs 7 and 8 stated that they had no prior acquaintance with the executants of Ext.A9 and by chance they happened to be the attestors in Ext.A9. I have gone through the evidence of PWs 7 and 8 and I find that they have given evidence that they subscribed their signature in Ext.A9 after the executants signed the same though they have lack of proper acquaintance with the executants and stated about their attesting Ext.A9 by chance. That does not mean that there is no proper attestation of Ext.A9. A Division Bench of this Court in **Chacko v.** **Elizabeth John (1997 (1) KLT 739)** has held that even when attesting witnesses or some of them turn hostile and denied that there was due attestation of the document it is possible for the court to find from the evidence and attending circumstances that there was due attestation of the document. On the evidence courts below have rightly rejected the contention that Ext.A9 is not properly attested by PWs 7 and 8. 6. Turning to lack of proper identification pleaded by the learned counsel, contention is that DW2, one of the identifying witness (I am told that the other identifying witness was no more at the the time of trial) had no prior acquaintance of the executants of Ext.A9. One circumstance that learned counsel would point out is that at a time when there was no identify cards issued by the authorities concerned and identification in that way was not possible and **RSA Nos.1032 & 1058/2009** 9 the original Will (Ext.B4) always remained with defendant Nos.6 to 13 (plaintiffs in O.S.No.114 of 2002 ) and which they produced in the trial court which meant that Ext.B4 was not produced before the Registrar at the time of its revocation as per Ext.A9. It is not the requirement of law that Ext.B4, Will should have been produced before the Registrar at the time of its revocation as per Ext.A9. What is required is only that the Registrar is satisfied with the identity of the executants. Registration Act contains sufficient provision whereby the Registrar could confirm identify of the executants. The Registrar could question the executants and confirm their identity. It is not disputed that Ext.A9 contains the endorsement, signature and seal of the Registrar that it have been duly registered which meant that the statutory formalities for registration has been complied with by that authority. There is no evidence to the contra. That DW2 happened to be an identifying witness when he came to the office of the Registrar in connection with another document and had no prior acquaintance with the executants of Ext.A9 are not sufficient to hold against proper registration of Ext.A9. There is also no contention that Ext.A9 was not executed by he late Kurian Mathai and (the late) plaintiff No.2 in O.S.No.154 of 2002. I must also bear in mind that (the late) plaintiff No.2 in O.S.No.154 of 2002 (defendant No.2 in O.S.No.114 of 2002) who is one of the executants in Exts.B4 and A9 filed written statement admitting cancellation of Ext.B4 as per Ext.A9. No further safeguard is required in the matter of identity of executants of Ext.A9. Therefore courts below are legally correct in holding that there is proper **RSA Nos.1032 & 1058/2009** 10 execution and attestation of Ext.A9 which in turn resulted in revocation of Ext.B4. If that be so in the light of Ext.A2, release deed executed by plaintiff No.2 in O.S.No.154 of 2002 (defendant No.2 in O.S.No.114 of 2002) there is proper release of her half right in item No.2 and her 1/3[rd] right in the remaining ½ right (consequent to the death of her husband, Kurian Mathai) in favour of plaintiff No.1 in O.S.No.154 of 2002 which meant that what was available for partition was only item No.3 (wrongly stated in the judgment and decree of the courts below as item No.1) in O.S.No.154 of 2002. Preliminary decree for partition of that item therefore stands. 7. So far as item No.2 of O.S.No.114 of 2002 is concerned, claim of defendant Nos.6 to 13 (plaintiffs in O.S.No.114 of 2002) is based on adverse possession and limitation which patently cannot stand since they claim that their predecessor-in-interest (late Chacko Mathai) got possession of the said item as per Ext.B5, agreement executed by the late Kurian Mathai and hence their possession is permissive and in acknowledgment of title of the said Kurian Mathai. When possession was acquired under a permission unless it is shown that in derogation of that grant and possessing the property under a hostile title to the knowledge of the real owner, the person in possession cannot prescribe title by adverse possession. There is no such case or evidence in this case. If that be so, other legal heirs of Kurian Mathai and deceased defendant No.2 (deceased plaintiff No.2 in O.S.No.154 of 2002) along with defendant Nos.6 to 13 (plaintiffs in O.S.No.114 of 2002) are co-owners of the said item and there is **RSA Nos.1032 & 1058/2009** 11 no justification in the plaintiffs in O.S.No.114 of 2002 seeking a decree for prohibitory injunction on the premises that they have perfected title by adverse possession. (I am told that item No.2 in O.S.No.114 of 21002 is not brought up for partition in O.S.No.154 of 2002). 8. What remained is only the correctness of allotment of shares of item No.4 in O.S.No.154 of 2002. It is not disputed that in that item 1/4[th] should go to defendant Nos.6 to 13 in O.S.No.154 of 2002 (plaintiffs in O.S.No.114 of 2002) in their capacity as the legal heirs of Chacko Mathai, pre-deceased son of Kurian Mathai and the remaining 3/4[th] share should go to the other legal heirs of Kurian Mathai and deceased plaintiff No.2 in O.S.No.154 of 2002. The preliminary decree passed by the learned Munsiff in respect of item No.4 is to be modified accordingly. The substantial questions framed are answered accordingly. Resultantly, A. R.S.A.No.1058 of 2009 is dismissed without any order as to cost. B. R.S.A.No.1032 of 2009 is allowed in part to the following extent. a. The partition ordered by the trial court and confirmed by the first appellate court in respect of item No.1 in O.S.No.154 of 2002 will be read as in respect of item No.3 therein. b. Judgment and preliminary decree passed by the trial court in O.S.No.154 of 2002 as confirmed by the first appellate court in A.S.No.34 of 2006 are modified as regards item No.4 in O.S.No.154 of 2002 in the following **RSA Nos.1032 & 1058/2009** 12 lines: i. The said item will be partitioned among the legal heirs of deceased Kurian Mathai and deceased plaintiff No.2 (in O.S.No.154 of 2002) except plaintiff Nos.3 and 4. 1/4[th] of the said property will go to the appellants/defendant Nos.6 to 13 while the remaining 3/4[th] will go to the other legal heirs of Kurian Mathai and deceased plaintiff No.2 other than plaintiff Nos.3 and 4. ii. In other respects R.S.A.No.1032 of 2009 will stand dismissed. I.A.No.2307 of 2009 in R.S.A.No.1032 of 2009 will stand dismissed. **THOMAS P.JOSEPH, Judge.** **cks**