BY AD v. SRI.K.V.SOHAN

THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON

22.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SATHISH NINAN, J. = = = = = = = = = = = = = = = = = = R.F.A. No.120 of 2015 = = = = = = = = = = = = = = = = = = Dated this the 22nd day of January, 2024 J U D G M E N T The preliminary decree in a suit for partition is under challenge by the defendants.

2. The property sought to be partitioned are described in schedules 'A' and 'B' to the plaint. 'A' schedule is 19 cents with a residential building thereon. Plaint 'B' schedule is, movables. The plaintiffs are the children of one Kumaran. He had another son named Jayachandran. He died on 16.11.2010. The defendants are the wife and children of Jayachandran.

3. The plaint schedule properties belonged to Kumaran. Kumaran died in September 1981. The plaintiffs seek partition of their 1/5 shares each(total 4/5 shares). R.F.A. No.120 of 2015 -: 2 :-

4. The claim for partition was challenged by the defendants relying on a Will claimed to have been executed by Kumaran on 20.01.1980. According to the defendants, as per the Will Kumaran had bequeathed the properties to their predecessor Jayachandran as the sole legatee with the liability to pay money to the plaintiffs in lieu of their shares.

5. The trial court held that the Will is not proved, and accordingly passed a preliminary decree for partition.

6. Heard learned counsel on either side.

7. The points that arises for determination are :- (i) On the evidence on record was the trial court right in having held against the Will relied on by the defendants ? (ii) Is the suit liable to be remanded to the trial court for marking the Will and granting opportunity to prove the same ?

8. The main grievance of the appellants is that, the Will though produced before the court, the same was R.F.A. No.120 of 2015 -: 3 :- refused to be admitted and marked in evidence. This disabled them from adducing evidence in support of the Will. Therefore, the suit is liable to be disposed of denovo, it is contended.

9. The relevant contention in the written statement with regard to the Will reads thus:- “So, after the death of Kumaran, Jayachandran, the predecessor of the defendants became the owner of the Plaint 'A' Schedule Property and the house therein as Kumaran bequeathed the aforesaid property through an unregistered Will.”

10. As is evident from the averments, the Will relied on by the defendants is an unregistered Will. As could be noticed from the averments as above, except for mentioning about a Will, not even the date of the alleged Will is mentioned. The Will was not produced along with the written statement. It was produced only at the stage of evidence. This is inspite of the denial of the Will in the replication by the plaintiffs. R.F.A. No.120 of 2015 -: 4 :-

11. Before the filing of the suit, the plaintiffs had caused to issue a suit notice. The defendants did not give any reply to the same. If there was a Will as claimed by the defendants, definitely a reply would have been sent pointing out the same and thus challenging the claim for partition.

12. A reading of the entire evidence shows that, though the Will was not marked by the Court, the Will was tendered to DW1 in cross-examination and was questioned regarding the same. So also the Will and the signature therein was put to DW2. Therefore, it cannot be said that any prejudice was caused to the defendants by the mere non-marking of the document. It is not a case where the document was not considered for evidence at all.

13. The learned counsel for the appellants would argue that non-admission and marking of the Will in evidence prevented the appellants from seeking a R.F.A. No.120 of 2015 -: 5 :- reference for opinion of handwriting expert. The said argument cannot stand since nothing prevented the defendants from seeking for expert opinion before the trial commenced. Since the Will was specifically denied in the replication filed by the plaintiffs, the defendants, if they wanted an expert opinion, could have taken steps in the said regard much before the trial commenced.

14. It is the case of the defendants that both the witnesses to the Will are no more. DW1 when cross- examined has deposed that the first witness died in the year 1971, ie. much prior to the execution of the Will. As regards the second witness, though it was suggested that he died in the year 1972, DW1 pleaded ignorance. Here it is to be noticed that, DW1 has admitted in further examination that both the witnesses were nearby residents. If that be so, he would definitely be aware of the death of the second witness also. The learned R.F.A. No.120 of 2015 -: 6 :- counsel for the appellants would argue that DW1 had only pleaded ignorance regarding the date of death of both the witnesses to the Will and had never admitted that the first witness died in the year 1971. The evidence is being misread, it was contended. I am unable to agree with the said submission. The relevant deposition is extracted hereunder :- 1þmw km-£n Zm-tam-Z-c³ 1971þð a-cn-¨p. 2þmw km-£n Ip- “ am-c³ 1972þð B-Wv a-cn-¨-sX-óv ]-d-ªmð F-\n-¡v A- dn-bnñ. F-t¸m-gm-Wv a-cn-¨-sX-óv A-dn-bnñ. c-ïv km-£n- Ifpw F-sâ ho-Sn-sâ ]-cn-kc-¯v D-ïm-bn-cp-ó-h-cmWv.” DW1 was definite in the answer that the first witness died in the year 1971. The other statement regarding the death of second witness is a separate statement by itself. At any rate she does not dispute/deny the suggestion put to her. Thus the Will lacks attestation.

15. Yet another reason on which the Will is not liable to be accepted is on the proof of the Will. As R.F.A. No.120 of 2015 -: 7 :- noticed above, it is the defendants' case that both the witness to the Will are no more. In such a case, Section 69 of the Indian Evidence Act enables the propounder to prove the Will by examining a person who is conversant with the signature of atleast one of the attesting witnesses. DW2 was examined by the defendants to prove the signature of one of the attesting witnesses. When the witness was shown the signature of the testator in the Will, he answered “F-só Im-Wn-¨ tc-J-bnð Zm-tam-Zc-sâ H-¸n-sâ A-tX cq-]-¯n-ep-Å H-¸v Im-Wp-ópïv.”.

16. The witness does not in categoric terms vouch that it is the signature of the testator. That apart, the witness would further say “Zm-tam-Zc-sâ H-¸v Rm³ tc-J- Ifnð I-ïn«nñ.”. Therefore, he was not at all familiar with the signature of the testator. Hence he could not be a proper witness to prove the Will in terms of Section 69 of the Evidence Act. Therefore, the Will is not proved in accordance with law. R.F.A. No.120 of 2015 -: 8 :-

17. Thus, viewed in any manner, it could only be held that the Will set up by the defendants is not liable to be accepted. As has been noticed above, no prejudice has resulted to the defendants by the non- marking of the Will. On the materials on record, an order of remand is not called for. No interference is called for with the impugned judgment. Resultantly, the appeal fails and is dismissed. Sd/- SATHISH NINAN JUDGE kns/- //True Copy// P.S. to Judge