Kerala High Court
Saiby vs Mary on 13 August, 2025
2025:KER:60191
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
WEDNESDAY, THE 13TH DAY OF AUGUST 2025 / 22ND SRAVANA, 1947
FAO (RO) NO. 127 OF 2016
AGAINST THE ORDER DATED 23.7.2014 IN AS NO.77 OF 2011 OF
SUB COURT, PERUMBAVOOR ARISING OUT OF THE ORDER DATED
29.3.2011 IN OS NO.113 OF 2009 OF MUNSIFF COURT,
PERUMBAVOOR
APPELLANTS/RESPONDENTS/PLAINTIFFS:
1 SAIBY
AGED 40 YEARS, W/O.JACOB, NEDUMAKUZHI, THURUTHI
P.O., PUNNAYAM KARA, ASAMANNOOR VILLAGE,
KUNNATHUNADU TALUK.
2 ELIYAMMA
AGED 75 YEARS, W/O.ISSAC, NEDUMAKUZHI, THURUTHI
P.O., PUNNAYAM KARA, ASAMANNOOR VILLAGE,
KUNNATHUNADU TALUK.
BY ADVS.
SRI.P.THOMAS GEEVERGHESE
SRI.TONY THOMAS (INCHIPARAMBIL)
RESPONDENTS/APPELLANT/PLAINTIFF:
MARY
W/O.ELDHOSE, KOYAKKATTU HOUSE, VARAPPETTY KARA,
VARAPPETTY VILLAGE, ERNAKULAM, PIN - 686 691
BY ADVS.
SMT.S.LEELALAKSHMI
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SRI.G.RAJAGOPAL
SMT.N.RENJINEE DEVI
THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING
COME UP FOR ADMISSION ON 29.07.2025, ALONG WITH FAO
(RO).128/2016, THE COURT ON 13.08.2025 DELIVERED THE
FOLLOWING:
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3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
WEDNESDAY, THE 13TH DAY OF AUGUST 2025 / 22ND SRAVANA, 1947
FAO (RO) NO. 128 OF 2016
AGAINST THE ORDER DATED 23.7.2014 IN AS NO.78 OF 2011
OF SUB COURT, PERUMBAVOOR ARISING OUT OF THE ORDER DATED
29.3.2011 IN OS NO.95 OF 2009 OF MUNSIFF COURT, PERUMBAVOOR
APPELLANTS/RESPONDENTS/PLAINTIFFS:
1 SAIBY
AGED 40 YEARS, W/O. JACOB,NEDUMAKUZHI, THURUTHI
P.O.,PUNNAYAM KARA, ASAMANNOOR
VILLAGE,KUNNATHUNADU TALUK.
2 JESN
AGED 42 YEARS, D/O. JACOB PALLIPADAN,RESIDING AT
NEDUVANKUZHI HOUSE,PUNNAYAM KARA, ASAMANNOOR
VILLAGE,REPRESENTED BY HER FATHER JACOB, AGED 42
YEARS, S/O. BABY, PALLIPPADAN HOUSE,RESIDING AT
NEDUVANKUZHI HOUSE, PUNNAYAM KARA, ASHAMANNOOR
VILLAGE,KUNNATHUNADU TALUK.
3 ELIYAMMA
AGED 75 YEARS, W/O. ISSAC,NEDUMAKUZHI, PUNNAYAM
KARA,ASAMANOOR VILLAGE, KUNNATHUNADU TALUK.
BY ADVS.
SRI.P.THOMAS GEEVERGHESE
SRI.TONY THOMAS (INCHIPARAMBIL)
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RESPONDENT/APPELLANT/DEFENDANTS:
1 MARY
AGED 41, W/O. ELDHOSE,KOYAKKATTU HOUSE,
VARAPPETTY KARA,VARAPPETTY VILLAGE, ERNAKULAM.
2 ELDHOSE
AGED 45 YEARS, S/O. KURIAKOSE,KOYAKKATTU HOUSE,
VARAPPETTY KARA,VARAPETTY VILLAGE, ERNAKULAM.
BY ADVS.
SMT.S.LEELALAKSHMI
SRI.G.RAJAGOPAL
SMT.N.RENJINEE DEVI
THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING
COME UP FOR ADMISSION ON 29.07.2025, ALONG WITH FAO
(RO).127/2016, THE COURT ON 13.08.2025 DELIVERED THE
FOLLOWING:
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"C.R"
EASWARAN S., J
--------------------------------
FAO (RO) Nos.127 and 128 of 2016
-------------------------------
Dated this the 13th day of August, 2025
JUDGMENT
These appeals arise out of an order of remand passed by the Sub
Court, Perumbavoor in A.S Nos.77/2011 and 78/2011 dated 23.07.2014.
By the judgment impugned, the First Appellate Court set aside the
judgment and decree of the Munsiff’s Court, Perumbavoor in
O.S.Nos.113/2009 & 95/2009 dated 29.3.2011 and remanded the suit back
for fresh consideration. In these appeals, certain intricate questions
pertaining to the interpretation of Section 63(c) of the Indian Succession
Act, 1925 read with Section 68 of the Indian Evidence Act, 1872 have been
raised.
2. The brief facts necessary for the disposal of these appeals are
as follows:-
O.S No.95/2009 was instituted by the appellants for a prohibitory
injunction, restraining the defendants [respondents herein] from trespassing
into the plaint schedule property, which they claimed as derived through a
Will executed by the 1st plaintiff’s father, one Issac. The plaintiff in O.S
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6No.113/2009 sought a prayer for declaration of title, recovery of
possession, partition, and for a permanent prohibitory injunction. On
appreciation of oral and documentary evidence, the trial court decreed O.S
No.95/2009 and dismissed O.S No.113/2009. Aggrieved by the judgment
and decree, the plaintiff in O.S No.113/2009 preferred two appeals, A.S
Nos.77/2011 and 78/2011. The primary dispute involved in the suits is as
regards the registered Will No.118/2007 dated 19.10.2007 [Ext.B5],
executed by late Issac, the father of the 1st appellant. Based on the Will, the
trial court dismissed the suit for declaration of title filed by the respondent
herein and decreed the suit filed by the appellants for permanent
prohibitory injunction. The First Appellate Court, however, took a view
that the Advocate Commissioner has not identified the property and
therefore, the trial court ought not to have decreed the suit filed by the
respondent herein. It was further found that, when the Will was attempted
to be proved, in terms of the mandate of Section 68 of the Indian Evidence
Act, 1872, attesting witness did not speak about the second attesting
witness who attested the Will and therefore, the mandate of Section 63(c)
of the Indian Succession Act, 1925 is not complied with and therefore
found that the Will is not proved. Accordingly, remanded back the suit for
a fresh trial, in accordance with law.
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3. In these appeals, the appellants contend that, the order of remand
is unwarranted, as it is nobody’s case that, the Will was not proved in terms
of Section 68 of the Indian Evidence Act, 1872. As regards the
misdescription of property, it is contended that, the first appellate court did
not notice Section 71 of the Indian Succession Act, 1925, and that, the
identity of a property cannot be the basis for questioning the Will.
4. Heard Shri.P.Thomas Geeverghese, the learned counsel for the
appellants and Shri.G.Rajagopal, the learned counsel for the respondents.
5. Shri.P.Thomas Geeverghese, the learned counsel for the
appellants contended that in terms of the provisions contained in Section 68
of the Indian Evidence Act, 1872 the appellants are required to examine
only one attesting witness and the mandate having been complied with, the
Will stood proved and therefore the trial court rightly decreed the suit. In
the memorandum of appeal, the respondent did not have a case that the
Will was not proved because of the infirmity in the oral testimony of DW2,
the attesting witness. The alleged misdescription, if any, would not render
the Will void inasmuch as the provisions of Section 71 of the Indian
Succession Act, 1925, would come to aid. In support of his contention,
relied on the decisions of the Hon’ble Supreme Court in H.Venkatachala
Iyengar v. B.N.Thimmajamma [AIR 1959 SC 443] and Shashi Kumar
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Banerjee v. Subodh Kumar Banerjee [AIR 1964 SC 529] and Ganesan
(Dead) Through Legal Representatives v. Kalanjiam and others
[(2020) 11 SCC 715].
6. Per contra, Shri.G.Rajagopal, the learned counsel for the
respondents, would contend that the basic requirement of Section 63 of the
Indian Succession Act, 1925 is that the Will should be attested by two
witnesses along with the testator. Read with Section 68 of the Indian
Evidence Act, 1872 the attesting witness should not only speak about the
factum of affixing the signature by the testator in his presence and that he
should also speak about the other attesting witnesses. Since, the statutory
requirements were not complied with, the First Appellate Court rightly
found that the Will cannot be accepted in evidence and remanded the suits
for fresh consideration. In support of his contention, relied on the decisions
of the Hon’ble Supreme Court in Yumnam Ongbi Tampha Ibemma
Devi v. Yumnam Joykumar Singh and Others [(2009) 4 SCC 780],
Gopal Swaroop v. Krishna Murari Mangal and Others [(2010) 14 SCC
266], Lalitaben Jayantilal Popat v. Pragnaben Jamnadas Kataria and
others [(2008) 15 SCC 365], Rur Singh (D) Th. Lrs. and others v.
Bachan Kaur [(2009) 11 SCC 1], Janki Narayan Bhoir v. Narayan
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Namdeo Kadam [(2003) 2 SCC 91] and Benga Behera and another v.
Braja Kishore Nanda and Others [(2007) 9 SCC 728].
7. I have considered the rival submissions raised across the Bar,
perused the judgments of the courts below and the records of the case.
8. On consideration of the rival submissions raised across the
bar, this Court framed the following substantial questions of law:
“(i). When there is a misdescription of property
bequeathed under the Will, whether it is a suspicious
circumstance defeating the Will or it is a matter for
construction under Section 78 of the Indian Succession
Act.
(ii). When an extent of property bequeathed under a
Will is not available to the testator, shouldn’t the court
apply Principles of Ademption under Section 152 of the
Indian Succession Act, or interpretation under Section 78
of the Act, instead of setting aside the Will?
(iii). Whether non examination of second attesting
witness is fatal to the proof of the Will?
(iv). If no question about the second attesting witness
is put to the attesting witness examined to prove the Will,
can it not be inferred that second attestation was done in
terms with principles stated in Devassykutty Vs Visalakshy
Amma [2010(3)KLT 1010]?
(v). When a suit is remanded for fresh trial, shouldn’t
the parties be given equal opportunity to adduce evidence
to advance their respective case?
(vi). Can the first appellate court introduce suspicious
circumstances about a Will based on misdescription of
property, which is neither pleaded nor proved before the
trial court?”
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Thus, in the light of the substantial questions of law framed as above, this
Court is called upon to address the question regarding the interpretation of
Section 63(c) of the Indian Succession Act, 1925. The answer to the above
question will ultimately determine whether the first appellate court was
justified in setting aside the judgment of the trial court holding that the Will
is not proved. It is pertinent to mention that, the respondent/defendant in her
appeal did not have a case that the Will is not proved in terms of Section 63
of the Indian Succession Act, 1925. It is thus obvious that the first appellate
court by itself formed an opinion regarding non-compliance of the
provisions of Section 63(c) of the Indian Succession Act, 1925. Therefore,
the issue to be addressed by this Court is, whether the propounder, while
attempting to prove a Will, must satisfy the conditions under Section 63(c)
of the Indian Succession Act, 1925.
9. The manner in which a Will is to be proved is laid down under
Section 68 of the Indian Evidence Act, 1872 which reads as under:-
“68. Proof of execution of document required by law to be
attested.- If a document is required by law to be attested, it
shall not be used as evidence until one attesting witness at least
has been called for the purpose of proving its execution, if there
be an attesting witness alive, and subject to the process of the
Court and capable of giving evidence:
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11Provided that it shall not be necessary to call an attesting
witness in proof of the execution of any document, not being a
Will, which has been registered in accordance with the
provisions of the Indian Registration Act, 1908 (16 of 1908),
unless its execution by the person by whom it purports to have
been executed is specifically denied.”
10. A bare reading of the aforesaid provision would show that, as
soon as the propounder examines the attesting witness, the requirement of
law is met. However, when we read Section 63(c) of the Indian Succession
Act, 1925, it would appear that a Will should be attested by two or more
witnesses, each of whom has seen the testator sign or affix his mark to the
Will. Section 63(c) of the Indian Succession Act, 1925 reads as under :
“63 Execution of unprivileged Wills.-
xxx xxx xxx
(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
acknowledgment of his signature or mark, or of 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.”
11. The thrust of the argument of the learned counsel for the
respondents is based on the decision of the Hon’ble Supreme Court in
Janki Narayan Bhoir v. Narayan Namdeo Kadam [(2003) 2 SCC 91].
Paragraph 10 of the decision is extracted for reference:-
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12“10. S.68 of the Evidence Act speaks of as to how a
document required by law to be attested can be proved.
According to the said Section, a document required by law to be
attested shall not be used as evidence until one attesting witness
at least has been called for the purpose of proving its execution,
if there be an attesting witness alive, and subject to the process
of the Court and capable of giving an evidence. It flows from
this Section that if there be an attesting witness alive capable of
giving evidence and subject to the process of the Court, has to be
necessarily examined before the document required by law to be
attested can be used in an evidence. On a combined reading of
S.63 of the Succession Act with S.68 of the Evidence Act, it
appears that a person propounding the Will has got to prove
that the will was duly and validly executed. That cannot be done
by simply proving that the signature on the Will was that of the
testator but must also prove that attestations were also made
properly as required by clause (c) of S.63 of the Succession Act.
It is true that S.68 of the Evidence Act does not say that both or
all the attesting witnesses must be examined. But at least one
attesting witness has to be called for proving due execution of
the Will as envisaged in S.63. Although S.63 of the Succession
Act requires that a Will has to be attested at least by two
witnesses, S.68 of the Evidence Act provides that a document,
which is required by law to be attested, shall not be used as
evidence until one attesting witness at least has been examined
for the purpose of proving its due execution if such witness is
alive and capable of giving evidence and subject to the process of
the Court. In a way, S.68 gives a concession to those who want to
prove and establish a will in a Court of law by examining at least
one attesting witness even though will has to be attested at least
by two witnesses mandatorily under S.63 of the Succession Act.
But what is significant and to be noted is that one attesting
witness examined should be in a position to prove the execution
of a will. To put in other words, if one attesting witness can
prove execution of the will in terms of the clause (c) of S.63, viz.,
attestation by two attesting witnesses in the manner
contemplated therein, the examination of other attesting witness
can be dispensed with. The one attesting witness examined, in
this evidence has to satisfy the attestation of a will by him and
the other attesting witness in order to prove there was due
execution of the Will. If the attesting witness examined besides
his attestation does not, in his evidence, satisfy the requirements
of attestation of the Will by other witness also it falls short of
attestation of will at least by two witnesses for the simple reason
that the execution of the will does not merely mean the signing of
it by the testator but it means fulfilling and proof of all the
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formalities required under S.63 of the Succession Act. Where
one attesting witness examined to prove the will under S.68 of
the Evidence Act fails to prove the due execution of the Will then
the other available attesting witness has to be called to
supplement his evidence to make it complete in all respects.
Where one attesting witness is examined and he fails to prove
the attestation of the Will by the other witness there will be
deficiency in meeting the mandatory requirements of S.68 of the
Evidence Act.”
12. The essence of the above decision is, while attempting to prove
a Will, in terms of Section 68 of the Indian Evidence Act, 1872 the
attesting witness, who is examined, should not only depose that, he has
seen the testator affixing the signature but also should speak about the
attestation by the 2nd attesting witness. While arriving at the aforesaid view,
the Hon’ble Apex Court read Section 63(c) of the Indian Succession Act,
1925 and Section 68 of the Evidence Act together and found that, the
effect of a combined reading of these two provisions would result in the
above conclusion. Following this decision, the Hon’ble Supreme Court in
other decisions consistently held that the requirement of law would be met
only if the attesting witness, who is being examined to prove the Will,
should speak about the presence of the other attesting witness also.
13. However, the view expressed by the Two Judge Bench
decision of the Hon’ble Supreme Court in Janki Narayan Bhoir (supra)
was not met with approval in Ganesan (Dead) Through Legal
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Representatives v. Kalanjiam and others [(2020) 11 SCC 715].
Paragraph 5 of the decision is extracted hereunder:-
“5. The appeals raise a pure question of law with
regard to the interpretation of Section 63(c) of the Act. The
signature of the testator on the will is undisputed. Section
63(c) of the Succession Act requires an acknowledgment of
execution by the testator followed by the attestation of the
will in his presence. The provision gives certain
alternatives and it is sufficient if conformity to one of the
alternatives is proved. The acknowledgment may assume
the form of express words or conduct or both, provided
they unequivocally prove an acknowledgment on part of
the testator. Where a testator asks a person to attest his
will, it is a reasonable inference that he was admitting that
the will had been executed by him. There is no express
prescription in the statute that the testator must
necessarily sign the will in presence of the attesting
witnesses only or that the two attesting witnesses must put
their signatures on the will simultaneously at the same
time in presence of each other and the testator. Both the
attesting witnesses deposed that the testator came to them
individually with his own signed will, read it out to them
after which they attested the Will.”
14. The primary reason for the Supreme Court to take a different
view from that of Janki Narayan Bhoir (supra) is that, Section 63(c) of the
Indian Succession Act, 1925 provides for alternatives and that, if the
attesting witness deposed that, he has seen the testator sign the Will, that is
sufficient compliance of Section 68 of the Indian Evidence Act is concerned
and in turn requirements of Section 63(c) of the Indian Succession Act, 1925
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is met. Pertinently, the Supreme Court did not notice the earlier view in
Janki Narayan Bhoir (supra), which creates difficulties in the present case.
15. In Dhanpat Vs Sheo Ram (deceased) Through Lrs and
others [2020 (16) SCC 209], the Supreme Court held that once the Will is
proved in terms of Section 68 of the Indian Evidence Act, 1872, then the
requirement of Section 63(c) of the Indian Succession Act, 1925 is met.
16. The learned counsel for the appellants would thus submit that,
since the decisions of the Supreme Court in Sheo Ram (Supra) and
Ganesan (Dead) Through Legal Representatives (supra) take a different
view, the same being subsequent decisions, should be applied as the binding
precedent under Article 141 of the Indian Constitution. However, the
learned counsel for the respondents would point out that, when the Hon’ble
Supreme Court rendered its decision in Ganesan (Dead) Through Legal
Representatives (supra), it did not notice the earlier decision on the point,
and hence, the decision in Ganesan (Dead) Through Legal
Representatives (supra) cannot be considered as a good law.
17. Apparently, there is a serious conflict as regards the decisions
of the Hon’ble Supreme Court, Janki Narayan Bhoir (supra) on one side
and in Sheo Ram (supra) and Ganesan (Dead) Through Legal
Representatives (supra) on the other side. However, one could say that, in
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Ganesan (Dead) Through Legal Representatives (supra), the Hon’ble
Supreme Court gave a different perspective to Section 63(c) of the Indian
Succession Act, 1925 and held that the Section provides for alternatives,
whereas in Janki Narayan Bhoir (supra), the Hon’ble Supreme Court did
not consider the impact of Section 63(c) of the Indian Succession Act, 1925
in its entirety. However, in the said decision Section 63(c) of the Indian
Succession Act was read along with Section 68 of the Indian Evidence Act,
1872. As far as Sheo Ram (supra) is concerned, the Supreme Court did
notice the decision in Janki Narayan Bhoir (supra) and decided otherwise.
18. In light of the conflicting views, the question before the Court
is which decision should be applied to the facts of the case. Should this
Court apply the earlier decision in Janki Narayan Bhoir (supra) or should
it apply Ganesh (dead) through Legal Representatives (Supra). Either
way, it is likely to offend one of the decisions of the Supreme Court.
19. In Hindustan Lever Limited Vs State [2007 KHC 6362], the
Supreme Court held that, if the High Court finds conflicting views of the
Supreme Court, it is open for the High Court to apply the decision which is
more suitable on facts of the case at hand.
20. However, in Sundeep Kumar Bafna Vs State of Maharastra
& Anr [(2014) 16 SCC 623], the Supreme Court held that, if a co-equal
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bench of the Supreme Court renders a decision without noticing the earlier
precedent on the point, then the binding precedent is the earlier decision and
not the subsequent decision. Interestingly, while rendering the decision as
above, the Supreme Court did not notice the earlier decision in Hindustan
Lever Limited (supra).
21. Having said so, can the High Court refuse to follow a binding
precedent by the Supreme Court on the ground that the subsequent decision
did not notice the earlier decisions on the point? What happens if a different
perspective is given by the subsequent decision of the Supreme Court, which
was not addressed by the earlier decisions? What happens if the High Court
finds that, on appreciation of the decisions, the law declared in the
subsequent decision is more appropriate to the facts of the case? These are
certainly vexatious issues which requires to be treaded carefully by the
Court because, either way, decision of this Court may go contrary to the
decisions of the Supreme Court, either at an earlier point of time or at a later
point.
22. A Full Bench of this Court in Raman Gopi Vs. Kunju Raman
Uthaman [2011(4) KHC 9] was called upon to decide the issue regarding
the conflict of decisions of co-equal benches of the Supreme Court and it
was held that in case of conflicting views taken in the decisions of two
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benches of equal strength of the Apex Court, the decision on the later point
of time will prevail over the earlier one.
23. In the light of what is stated above, this Court needs to consider
the cumulative decisions of the Supreme Court cited across the bar. In Sheo
Ram (Supra) , the Supreme Court considering the scope of Section 63(c) of
the Indian Succession Act, 1925 held that, the propounder is said to have
satisfied the requirement of Section 63(c), if he meets the requirement of
Section 68 of the Indian Evidence Act, 1872. In Ganesh (dead) through
Legal Representatives (supra), the Supreme Court held that Section 63(c)
speaks of alternatives and it is sufficient if any of the alternatives is proved.
24. The question again came to be addressed by the Supreme Court
in Gopal Krishan and others v. Daulat Ram and others [(2025) 2 SCC
804], and it was held that once an attesting witness has seen the deceased
affixed the signature or marked on the Will, that alone will ensure
compliance of Section 63(c) of the Indian Succession Act, 1925. Paragraph
22 of the decision is extracted as under :-
“22. In the present case the testimony of DW1 is
clear that he had seen the deceased affix his mark on the
will. That alone would ensure compliance of Section
63(c). The part of the section that employs the term
“direction” would come into play only when the attestor
to the will would have to see some other person signing
the will. Such signing would explicitly have to be in the
presence and upon the direction of the testator.”
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25. It is pertinent to note that the Supreme Court rendered the
above decision after noticing the earlier decision in Janki Narayan
Bhoir (supra). In the light of the above decision, any doubt surrounding the
requirement of an attesting witness speaking about the presence of another
attesting witness no longer survives. When we read the principles laid down
by the Supreme Court in Sheo Ram (supra), Ganesh (dead) through
Legal Representatives (supra) and Gopal Krishnan (supra) in cumulative,
it can be safely concluded that the requirement of Section 63(c) is met, if the
propounder examines one of the attesting witness who speaks about the
testator affixing the signature in the Will and thus complying the
requirements of Section 68 of the Indian Evidence Act. Going by the
principles enunciated by the Supreme Court in the later decisions on the
scope of Section 63(c) of the Indian Succession Act, 1925, this Court finds,
it is bound to apply the later decision and not the earlier one.
26. In Metapalli Lasum Bhai (Since dead) vs Metapalli
Muthaih (D) By LR‘s [(2025) SCC Online SC 1488], the Supreme Court
held that if a Will is registered, the burden is on the party who denies its
existence or that there were suspicious circumstances.
27. In the present case, no doubt the Will in question is a registered
Will. It is indisputable that, the Will is attested by two attesting witnesses
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and one of them has clearly spoken about the testator affixing the signature.
The plaintiff in OS No.113/2009 did not have a case that, it was bad for
want of proper attestation under Section 63(c) of the Indian Succession Act,
1925. In fact, the specific case pleaded is that the Will is vitiated by undue
influence. A reading of the oral testimony of the plaintiff, will show that she
had no case of any undue influence or that the Will was bad for any reason.
In fact, no plea regarding suspicious circumstances is raised. Hence, the
scope of consideration of the appeals, if at all, was limited to examining the
question as to whether the plaintiff had discharged the burden and to what
extent the defendants were successful in proving the Will in terms of Section
68 of the Indian Evidence Act, 1872. That be so, the first appellate court
went wrong in finding that since the attesting witness has not spoken about
the presence of the 2nd attesting witness, the Will is not proved. While
holding so, the first appellate court failed miserably to consider the fact that,
under Section 63(c) of the Indian Succession Act, it is not the requirement of
law that the two attestors should be present at the same time when the
testator signs the Will. If that be so, how can an attesting witness prove that,
he had seen other attestor signing the Will, if the attestation was done at a
different time? It is in this context, the decisions of the Supreme Court in
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Ganesh (dead) through LRS (supra) and in Gopal Krishnan (supra)
assume significance.
28. Yet another infirmity pointed out in the finding of the first
appellate court is that it thoroughly went wrong in holding that the identity
of the property is not proved and hence the Will cannot take effect. A Will
cannot be said to be invalid merely because there is a discrepancy in the
description of the property. Section 78 of the Indian Succession Act, 1925
provides that, erroneous description of the subject must be rejected and the
bequest should take effect. Section 78 of the Indian Succession Act reads as
under:-
“Section 78- Rejection of erroneous particulars in
description of subject.- If the thing which the testator
intended to bequeath can be sufficiently identified from the
description of it given in the Will, but some parts of the
description do not apply, such parts of the description shall be
rejected as erroneous, and the bequest shall take effect.”
29. Inconsistency, if any, in the description of the property will
have to be reconciled to give effect to the intention of the testator. The entire
exercise done by the first appellate court is nothing short, but to destroy the
Will executed by late Issac. The exercise undertaken cannot be given a
stamp of approval by this Court. In case the courts find that, there is a
misdescription of the property in the “Will”, the extent of misdescription
will have to be eschewed so as to give effect to the “Will”. It is trite law
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that, Will being the last testament of the deceased, the same has to be given
effect to and it is not for the court to conduct a roving enquiry as regards the
validity of the Will. The endeavour of the courts should always be to give
effect to the Will and not to render it as a void one. Unfortunately, the first
appellate court did not notice these settled principles and on an erroneous
assumption, held that the Will is not proved.
30. This Court cannot remain oblivious of the fact that in the appeal
before the first appellate court, the respondent did not have a case that the
Will was not proved in terms of Section 63(c) of the Indian Succession Act,
1925 read with Section 68 of the Indian Evidence Act, 1872. Therefore, this
Court is of the considered view that the order of remand by the first
appellate court is completely erroneous and unsustainable under law.
Accordingly, the appellants are entitled to succeed, and hence, the
appeals are allowed, by answering the questions of law (i) to (iv) in favour
of the appellants. The other questions of law are not answered in view of
the above. The judgment dated 23.07.2014 in A.S Nos.77/2011 and 78/2011
on the files of Sub Court, Perumbavoor is set aside. Resultantly, the appeals
shall stand restored to the files of the Sub Court, Perumbavoor. The Sub
Court, Perumbavoor is directed to consider the appeals on merits, in
accordance with law, as expeditiously as possible, at any rate, before the
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closure of the courts for the Christmas vacation. The parties are directed to
appear before the Sub Court, Perumbavoor on 22.8.2025. Ordered
accordingly.
Sd/-
EASWARAN S.
JUDGE
AMR
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