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2022 Supreme(Online)(KER) 50166
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE P.SOMARAJAN TUESDAY, THE 22ND DAY OF MARCH 2022 / 1ST CHAITHRA, 1944 RFA NO. 152 OF 2016 (F)
AGAINST THE JUDGMENT AND DECREE DATED 19/11/2015 IN OS 226/2013 OF III ADDITIONAL SUB COURT, KOZHIKODE APPELLANT/3RD DEFENDANT:
UJJALABAI AGED 59 YEARS W/O PRABHAKARAN, RESIDING AT THOTUNGAL HOUSE, BEYPORE NORTH P.O., KOZHIKODE.
BY ADVS.
SRI.V.V.SURENDRAN SRI.P.A.HARISH RESPONDENTS/PLAINTIFF & DEFENDANTS 1, 2, 4 TO 10:
1 PUTHUKKUDY BHARATHAN S/O. PUTHUKUTY KUMARAN, 1/3808, PRATHIBHA, ERANHIPALAM, KACHERI AMSOM DESOM, EAST HILL ROAD, KOZHIKODE -673 006.
2 RAGHAVAN PUTHUKUDY(DIED)
S/O. PUTHUKUDY KUMARAN, MALAPARAMBA HOUSING COLONY, MALAPARAMBA P.O., KOZHIKODE - 673 009.
(THE DEATH OF R2 IS RECORDED AS PER ORDER DATED
26.09.2018, VIDE MEMO DATED 10.08.2018)
3 PURUSHOTHAMAN PUTHUKUDY S/O. PUTHUKUDY KUMARAN, SAMARPANAM, MALIKKADAVU P.O., KARUVISSERY AMSOM, KOZHIKODE – 673 010
4 SUBHASHINI D/O. BHAVANI, ITHANAKANDY HOUSE, NEAR RADIO STATION, EDAKKAD P.O., KOZHIKODE – 673 005.
5 K. SOBHA W/O.K. PAVITHRAN, PANOLI PARAMBA, 27/1042, KUTHIRAVATTOM P.O., KOZHIKODE - 673 016.
6 RAVEENDRAN S/O. BHAVANI, ITHANAKANDY HOUSE, NEAR RADIO STATION, EDAKKAD P.O, KOZHIKODE – 673 005
7 K. JAYAPRABHA W/O. SUBHASH CHANDRAN, VALAVIL HOUSE, ERANHIKKAL P.O., KOZHIKODE – 673 303.
8 SUBHAGINI W/O LATE VIJAYAN, NIJA NIVAS, KOMMERI P.O., KOZHIKODE –
673 007.
9 NIJA D/O. LATE VIJAYAN, NIJA NIVS, KOMMERI P.O., KOZHIKODE – 673 007
10 AISWARYA D/O. LATE VIJAYAN, NIJA NIVS, KOMMERI P.O., KOZHIKODE – 673 007 ADDL. R11 CHITRA, AGED 74 YEARS W/O.RAGHAVAN, PUTHUKKUDY HOUSE, MALAPARAMBA HOUSING COLONY, MALAPARAMBA, KOZHIKODE 673 009.
ADDL.R12 ROLEK,AGED 49 YEARS W/O.VALSARAJ, RESIDING AT OMKAR HOUSE, MEETHELPEEDIKA, PO DHARMADOM - 670106 ADDL.R13 ROSHINI,AGED 47 YEARS W/O.RAVEENDRAN, RESIDING AT PUTHUKUDY HOUSE, MALAPARAMBA HOUSING COLONY, MALAPARAMBA, KOZHIKODE – 673 009.
ADDL.R14 ROSHAN, AGED 46 YEARS S/O RAGHAVAN, RESIDING AT PUTHUKUDY HOUSE, MALAPARAMBA HOUSING COLONY, MALAPARAMBA, KOZHIKODE – 673 009.
ADDL.R15 RANJEESH, AGED 46 YEARS S/O.RAGHAVAN, RESIDING AT PUTHUKUDY HOUSE, MALAPARAMBA HOUSING COLONY, MALAPARAMBA, KOZHIKODE – 673 009.
(THE LEGAL HEIRS OF THE DECEASED SECOND RESPONDENT ARE IMPLEADED AS ADDITIONAL RESPONDENTS 11 TO 15 VIDE ORDER DATED 02/07/2021 IN IA 1/18.
BY ADVS.
SRI.K.M.FIROZ FOR R1, R2 SRI.S.KANNAN FOR R1, R2 SMT.M.SHAJNA FOR R1, R2 SRI.R.BINDU (SASTHAMANGALAM)FOR R4, R6 SRI.PRASANTH M.P FOR R4, R6 M.P.SREEKRISHNAN FOR R5, R7 SRI.A.MUHAMMED MUSTHAFA FOR R5, R7 SRI.SUNIL NAIR PALAKKAT FOR R8, R9, R10 SRI.K.N.ABHILASH FOR R8, R9, R10 SRI.SANTHARAM.P FOR R11, R12, R13, R14, R15 SMT.REKHA ARAVIND FOR R11, R12, R13, R14, R15 SRI.PAUL P. ABRAHAM FOR R11, R12, R13, R14, R15 SRI.GOKULNATH FOR R14 THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON
22.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CR
JUDGMENT
The preliminary decree for partition is brought under challenge by the 3rd defendant mainly on two grounds that there is failure to appreciate the last testament, Ext.B1, left out by the testator, one Janaki by the trial court and secondly on the ground that the preliminary decree is not in accordance with the mandate under Section 15 of the Hindu Succession Act, 1956. The parties are Thiyyas among Hindus.
2. Regarding the genuineness and due execution of Ext.B1, one of the attesting witnesses was examined as DW2. Going by Ext.B1 Will, it is clear that there are three witnesses to the document and it was written in a diary signed by the testator.
3. DW2, one of the attesting witnesses was examined in proof of due execution of the Will. But going by Ext.B1, the alleged Will, it is clear that there is no attestation as mandated under Section 63(c) of Indian Succession Act, 1925. There is nothing in the document that the execution was effected in accordance with the mandate under Section 63(c) of the Indian Succession Act, which is extracted below for reference:
“
63(c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.”
(emphasis supplied)
4. The Will should be attested atleast by two witnesses under Section 63(c) of Indian Succession Act. It further mandates that (i) the witnesses should have seen the affixture of signature or mark by the testator in the Will or had received a personal acknowledgment from the testator regarding his signature or mark affixed and that (ii) the witnesses should have signed the Will in the presence of the testator. These are the two inseparable requirements to be satisfied in proof of due execution and cannot be brought under the purview of procedural law, but will form the essence of the requirement embodied under that provision and hence, a mere substantial compliance may not be sufficient to bring the matter within its sweep. Necessarily, the abovesaid mandate should reflect in the execution of the testament, a Will or Codicil and something should be there in the Will or testament regarding the compliance of abovesaid two statutory requirements. Hence, it is not permissible to introduce the said requirement at first in the court after the death of the testator unless there is something discernible from the document, the Will or testament regarding its compliance. That is really lacking in the instant case, wherein there is not even any mention with respect to the compliance of the said requirements. Hence, it cannot be said that the Will was executed in accordance with the mandate under Section 63(c) of the Indian Succession Act.
5. At this juncture, it is relevant to look into the earlier legal position settled by this Court in Gopinathan Nair Maheswaran Nair v. Madhavi Amma Nirmala Bai and Others (2019 (3) KHC 950), wherein it was held that the mandate under Section 63 of the Indian Succession Act is not amenable for any kind of relaxation and even substantial compliance may not be sufficient.
6. It is also brought to the notice of this Court that some alterations were made in the Will by deleting certain portions from the alleged Will and claims that it was done by the testator. But it is not necessary to go into that issue since the Will is found to be not executed in terms of the mandate under Section 63 (c)
of the Indian Succession Act.
7. Necessarily, the property would stand devolved upon the legal heirs in accordance with the devolution under Section 15 of the Hindu Successio
