Sreelatha and Others v. Santha and Sunif

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **FRIDAY, THE 10[TH] DAY OF DECEMBER 2021 / 19TH AGRAHAYANA, 1943 FAO (RO) NO. 3 OF 2021** **AGAINST THE JUDGMENT & DECREE DATED 28/09/2020 IN AS 29/2018 OF SUB COURT AT PUNALUR, KOLLAM AND JUDGMENT DATED 01/06/2018 IN OS 597/2015 OF MUNSIFF COURT, PUNALUR** ## **APPELLANTS/RESPONDENTS/DEFENDANTS 2 TO 4:** 1 SREELATHA AGED 54 YEARS W/O.VIJAYAN,VIPIN NIVAS,NADUKUNNUMPURAM,YEROOR VILLAGE,PUNALUR TALUK,KOLLAM DISTRICT. 2 VIPIN, AGED 35 YEARS S/O.VIJAYAN,VIPIN NIVAS,NADUKUNNUMPURAM,YEROOR VILLAGE,PUNALUR TALUK,KOLLAM DISTRICT. 3 VIJIN, AGED 33 YEARS S/O.VIJAYAN,VIPIN NIVAS,NADUKUNNUMPURAM, YEROOR VILLAGE,PUNALUR TALUK,KOLLAM DISTRICT. BY ADVS. G.P.SHINOD SRI.GOVIND PADMANAABHAN SHRI.AJIT G ANJARLEKAR ## **RESPONDENTS/APPELLANTS/PLAINTIFFS:** 1 SANTHA D/O.CHELLAMMA,AGED 72 YEARS,NADUKKUNNUMPURATHU VEEDU,YEROOR VILLAGE,PUNALUR TALUK, KOLLAM DISTRICT-691512. 2 SUNIF, AGED 49 YEARS S/O.PURUSHOTHAMAN,THENGAZHIKATHU VEEDU, AMBALAMKUNNU,ELAMADU VILLAGE,KOTTARAKKARA TALUK,KOLLAM DISTRICT-691306. FAO (RO) NO. 3 OF 2021 2 BY ADVS. SRI.B.KRISHNA MANI SMT.DHANUJA M.S THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING COME UP FOR HEARING ON 10.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: FAO (RO) NO. 3 OF 2021 3 ## **CR** ## **JUDGMENT** Some interesting questions have come up for consideration as to whether it is necessary to prove a Will or a testament as against a stranger, who is not litigating under the testator, whether it is necessary to prove a Will or testament as mandated under Section 68 of the Evidence Act, when its execution is admitted or not specifically disputed, whether Section 58 of the Evidence Act is applicable in the matter of proof of such documents, whether the court can exercise its discretion under the proviso attached to that section so as to require the party to prove its execution inspite of admission and under what circumstance it can be exercised, who are the persons entitled to challenge the validity and execution of a testament or a Will and what actually amounts to “a person interested to deny” for the said purpose, besides the other issues pertaining to the dispute FAO (RO) NO. 3 OF 2021 4 involved. It is a suit for a permanent prohibitory injunction and a mandatory injunction, wherein a counter claim was also raised by the defendants for declaration of title by adverse possession and limitation. The trial court dismissed the suit and decreed the counter claim, against which an appeal was preferred before the first appellate court. The first appellate court set aside the judgment and decree of the trial court and remanded the matter back to the trial court mainly for the purpose of proving due execution of Ext.A12 registered Will as mandated under Section 65 of the Evidence Act, against which, the defendants 2 to 4 came up. 2. It is a suit between the mother and the daughter. Daughter is the 2[nd] defendant and mother is the first plaintiff. The trial court found Ext.A12 registered Will not proved in accordance with the mandate under Section 68 of the Evidence Act and also found that the defendants have perfected title by adverse possession and limitation, thereby the suit was FAO (RO) NO. 3 OF 2021 5 dismissed and the counter claim was decreed. 3. Admittedly, none of the defendants including the 2[nd] defendant daughter is not a person litigating under the testator, the father of first plaintiff. Ext.A12, the registered Will brought under challenge by the defendants mainly on the reason that it was not proved in accordance with the mandate under Section 68 of the Evidence Act and 63 of the Indian Succession Act. It is settled that the onus to prove the Will is on the propounder and he/she has to expel the suspicious circumstances surrounding the execution of the Will, if any and to prove the testamentary capacity of the testator besides the proof of the signature of the testator and its execution as mandated under Section 63 of Indian Succession Act. A reading of Section 63 of the Indian Succession Act with Sec.68 of the Evidence Act would show that a person propounding a Will has to prove that the Will was duly and validly executed and that should be done by not merely establishing that the signature on the Will was FAO (RO) NO. 3 OF 2021 6 that of the testator, but also that the attestations were made in the manner contemplated by clause (c) of Section 63 of the Succession Act. It was endorsed by the Apex Court In **Janki** ## **Narayan Bhoir v. Narayan Namdeo Kadam [(2003) (2)** **SCC 91 = AIR 2003 SC 761]** . 4. The Will or a testament is not an exception to the general rule governing admission of documents and reliance can be safely taken from the decision of the Apex Court in ## **Balathandayutham and Another v. Ezhilarasan** **[(2010) 5 SCC 770].** The very same view was also expressed by a Division Bench of this Court in **P.Maya Sivasankar and Ors. v. Sathi and Ors.** **(2011 (2) KHC 30)** . The mandate incorporated under Section 68 of the Evidence Act by the inclusion of the expression that “it shall not be used as evidence” shall not be interpreted so as to reject an admission made by the contesting party regarding due execution of a Will or testament. The general principle governing admission of document is equally applicable in FAO (RO) NO. 3 OF 2021 **==> picture [8 x 9] intentionally omitted <==** the case of a Will or testament. Only when it is brought under challenge, the requirement under Section 68 of the Evidence Act would come into play. Hence,the said expression cannot be applied to a document, which is not under challenge. The requirement of summoning atleast one of the attesting witnesses in proof of a testament or a Will as mandated under Section 68 of the Evidence Act shall not be read so as to offend the application of Section 58 of the Evidence Act incorporated under the very same Chapter viz., Chapter III in Part II of the Evidence Act. The proviso attached to Section 58 gives a discretion to the court to require the facts to be proved otherwise than by such admission, hence corresponds to the proviso to Rule 5(1) of Order VIII C.P.C.. An admission made by the party being a judicial admission under Section 58 of the Evidence Act stands on a higher footing than the evidentiary admission that can be arrived at by the court by virtue of exercise of jurisdiction under the proviso to that section. There are some FAO (RO) NO. 3 OF 2021 **==> picture [8 x 9] intentionally omitted <==** slight differences in the legal impact and the consequences thereof between judicial admission from that of evidentiary admission – the result of exercise of jurisdiction under the proviso to Section 58 of the Evidence Act. The former class of admissions are fully binding on the party that makes them and constitute a waiver of proof. They by themselves can be made the foundation of the rights of the parties. On the other hand, evidentiary admissions which are receivable at the trial as evidence, are by themselves,not conclusive. They can be shown to be wrong ( **Nagindas Ramdas v. Dalpatram Icchharam alia Brijram (AIR 1974 SC 471 at page 477** ). It is really a rule of caution and the court is not expected to exercise its discretion under the proviso unless the admitted document by its nature requires compliance of some other mandate for its validation such as compulsory registration, unstamped document in violation of Section 35 of the Stamp Act, medical certificate etc. When the admission regarding due execution FAO (RO) NO. 3 OF 2021 9 of document is true and clear, the courts are bound to accept it in terms of Section 58 of the Act and it cannot be brought under the purview of the proviso attached to it, unless there are compelling reasons and in the case of a Will or testament, the non-compliance of a statutory requirement, which would make the document invalid, that is to say, the non-compliance of mandate under Section 63(c) of the Indian Succession Act – the compulsory requirement of attestation atleast by two witnesses. To put it in short, when there is clear and true admission regarding due execution of a testament or Will, the courts are bound to accept it based on the said judicial admission, wherein there is no scope for exercising the discretion for getting evidentiary admission by calling upon the party to prove its due execution, unless the testament or the Will is bad for non-compliance of statutory requirement of attestation atleast by two witnesses as mandated under Section 63(c) of the Indian Succession Act. Necessarily, it must FAO (RO) NO. 3 OF 2021 10 be understood that when the document appears to be attested by two or more witnesses, the admission made by the contesting party would operate wherein the court cannot exercise its discretion under the proviso to Section 58 of the Act. In fact, the proviso attached to Section 58 of the Act is an exception to the main provision and the discretion can be exercised with due care and caution only when such requirement found to be necessary for a fair determination. 5. The competency and entitlement either to admit a fact or to dispute it may have its own role to play, especially in the matter of a Will or Codicil, in which only the persons claiming under the testator or a “person interested” alone can exercise his entitlement either to deny or admit its execution. A total stranger has nothing to do with the execution of a testament or Will or devolution of successive interest thereunder, unless he is a person claiming under the testator or a “person interested to admit or deny its execution” such as a pendente lite transferee or FAO (RO) NO. 3 OF 2021 11 a person litigating under any of legatees or a person acquired interest over it by any deeds, transfer etc, but will not include a person, who has set up adverse interest over the property in derogation of rights of testator. The principle behind it is that a testament would operate only with respect to the subsisting rights held by the testator over the subject of the Will and it is an internal matter to be agitated between the persons claiming under him viz., legatees, legal heirs and legal representatives, not available to a stranger, who claims adverse interest against the testator over the subject. The daughter, the 2[nd] defendant admittedly is not a person claiming under the testator and not a natural legal heir. She is not a legal representative of the deceased or the estate left out. The only case raised is perfection of title by adverse possession and limitation, in derogation of the interest held by the testator. As such, she cannot be termed as “a person interested to deny” the execution of the testament. As against a person, who claims FAO (RO) NO. 3 OF 2021 **==> picture [16 x 9] intentionally omitted <==** adverse title in derogation of testator, it is not at all necessary to prove the execution of a Will or Codicil by summoning atleast one of the attesting witnesses as mandated under Section 68 of the Evidence Act. There is no scope for proving a Will in accordance with the mandate under Section 68 of the Evidence against a stranger, who is not claiming under the testator or having any interest to deny its execution. The expression “interested to deny its execution” shall not be construed as an interest over the property claimed by the party in derogation of the interest held by the testator over the property. Hence, the first appellate court is not justified in remanding the matter back to the trial court so as to prove the due execution of Ext.A12 registered Will as against the defendants in the suit. Further, the first plaintiff admittedly is the legal heir of deceased testator and as such, she can maintain the suit even without proving Ext.A12 registered Will. 6. The basic ingredients which would FAO (RO) NO. 3 OF 2021 13 constitute perfection of title by adverse possession is the “hostile animus” to hold the property in derogation of the right, title and interest of the rightful owner of the property for the prescribed period of 12 years and it should be an open assertion capable of giving the factum of adverse animus exercised to the notice of all interested including the rightful owner of the property. A secret animus to hold the property cannot be substituted in the place of an open hostile animus to hold the property in derogation of the rightful owner. The existence of a fiduciary relationship between them is destructive to the hostile animus, if any claimed, unless constitute an act of ouster or open assertion of animus by the act of parties capable of giving notice. The 2[nd] defendant admittedly is the daughter of first plaintiff and the existence of a fiduciary relationship between the parties would normally give rise to a presumption of permissive possession unless a contrary intention is well explicit from the act FAO (RO) NO. 3 OF 2021 **==> picture [16 x 9] intentionally omitted <==** of parties. Both the trial court and the first appellate court had not adverted to the abovesaid factors. There is failure on the part of the first appellate court to exercise its jurisdiction as laid down by this court in **Gopalakrishnan and Another v. Ponnappan and Others (2021 (5) KHC 548).** As such, the order of the remand of the first appellate court is hereby set aside. The matter is remanded back to the first appellate court for disposal of the appeal in accordance with the law in force. The parties shall appear before the first appellate court on 10.01.2022. There shall be a direction to dispose of the matter within a time schedule of two months from the date of appearance of parties. The F.A.O.(RO) is allowed accordingly. No costs. ## **Sd/-** ## **P.SOMARAJAN** sv ## **JUDGE**