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IN THE HIGH COURT OF KERALA AT ERNAKULAM
N. ANIL KUMAR, J.
Prabhakumari D/o Late Ambikakumari – Appellant
Versus
S. Mohanarajan S/o Late Sadasivan – Respondent
R.S.A. No. 378 of 2020
Decided On : 29-06-2021
Code of Civil Procedure, 1908 – Section 100 – Indian Evidence Act, 1872 – Section 68 – Indian Succession Act, 1925 – Section 63 – Will Deed – Plaintiff preferred a complaint before Land Revenue Commissioner seeking to cancel order passed by 3rd defendant effecting mutation of said property in favour of defendants 1 and 2. – Since no favourable action was taken, plaintiffs filed a writ petition before this Court seeking appropriate directions. – Court dismissed writ petition reserving right of parties to approach before competent forum in accordance with law. – Plaintiffs filed present suit to declare Will deed became ineffective and non-existent and further declare that order passed by 3rd defendant in favour of 1st and 2nd defendants is null and void – In addition to above, a decree for mandatory injunction directing 3rd defendant to effect mutation of plaint schedule property having an extent of 4.07 Ares comprised in Re. Sy. 110/32 of Mundakkal Village in favour of plaintiffs on strength of Will deed is sought for – Trial court dismissed suit as per judgment and decree – Plaintiffs preferred A.S. before District Court, Kollam against said judgment and decree – On getting made over appeal, after having heard both sides, Additional District Court-II, Kollam dismissed same as per judgment and decree – Being dissatisfied with judgment and decree passed by courts below, plaintiffs have filed this R.S.A. before this Court – Trial court held that Will deed cannot be declared as void as prayed for in plaint – Trial court held that order of 3rd defendant allowing to effect mutation in name of 1st and 2nd defendants cannot be declared invalid – This finding has been confirmed in appeal by first appellate court.
Finding of the court:
Section 68 of Evidence Act postulates mode and manner in which proof of execution of document is required by law to be attested – Will must be attested by two or more witnesses, each of whom has seen testator signing or affixing his mark to Will or has received personal acknowledgment from testator on his signature or mark. – It is clear that plaintiffs have not been able to prove that Will was executed by testatrix in favour of plaintiffs by two attesting witnesses as required by law. – First appellate court examined evidence on record at length and arrived at a logical conclusion that Ext.A3 Will was not proved – Finding is based on cogent and binding evidence on record including provisions contemplated under Section 63 of Succession Act and Section 68 of Evidence Act – Conclusion of trial court and first appellate court negativing contentions of plaintiffs on strength of Ext.A3 Will does not warrant interference in a second appeal – By virtue of Section 63 of Succession Act and Section 68 of Evidence Act, general principles to be applied to determine question involved in suit are well settled – Well settled principles would not be a substantial question of law as contemplated under Section 100 of Code of Civil Procedure – Going by evidence adduced in this case, there is no controversy before this Court with regard to interpretation or legal effect of Ext.A3 or any wrong application of a principle of law in construing Ext.A3 – There is no debatable issue before this Court which is not covered by settled principles of law –
Result : R.S.A. Dismissed
JUDGMENT :
N. ANIL KUMAR, J.
1. This appeal is directed against the judgment and decree dated 31.10.2019 in A.S. No. 86/2018 on the file of the Additional District Court-II, Kollam (hereinafter referred to as ‘the first appellate court’) which arose out of the judgment and decree dated 12.4.2017 in O.S. No. 772/2014 on the file of the Additional Munsiff's Court, Kollam (hereinafter referred to as ‘the trial court’). The plaintiffs are the appellants. The parties are hereinafter referred to as described in O.S. No. 772/2014 unless otherwise stated.
2. Brief facts of the case necessary to be noted for deciding this appeal are as under:-
3. The defendants 1 and 2 filed written statement denying the execution of the second Will contending that Ambikakumari was laid up on the alleged date of execution of the said Will. It was further contended that, taking advantage of the custody of Ambikakumari during the fag end of her life, the plaintiffs fraudulently created the alleged Will deed No. 43/2003. The parents of the plaintiffs and defendants had never disposed of the property during their life time. Hence the Will deed No. 41/1985 had come into effect and accordingly the defendants were put in possession of the property as absolute owners thereof. According to the defendants 1 and 2, the plaintiffs have no cause of action to institute the suit. The 3rd defendant also filed the written statement denying the allegations against him in the suit and seeking to dismiss the same.
4. After framing the issues, the trial was conducted. On the side of the plaintiffs, the 1st plaintiff got examined as PW-1, the Village Officer got examined as PW-2, the Sub Registrars got examined as PWs. 3 and 4, husband of the 1st plaintiff got examined as PW-5, one of the attesting witnesses of the Will got e
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