Kerala High Court
*Varunni vs Rosy on 8 April, 2026
RFA NO. 165 of 2004 1 2026:KER:31402
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
WEDNESDAY, THE 8TH DAY OF APRIL 2026 / 18TH CHAITHRA, 1948
RFA NO. 165 OF 2004
AGAINST THE JUDGMENT AND DECREE DATED 24.09.2003 IN OS NO.378
OF 1998 OF ASSISTANT SESSIONS COURT/II ADDITIONAL SUB
COURT,THRISSUR
APPELLANT/DEFENDANT/LRs OF A1:
1 VARUNNI
S/O. THATTIL RAPPAI, LALUR DESOM, ARANATTUKARA VILLAGE,
THRISSUR TALUK. [DIED]
2 MARY
W/O. LATE VARUNNI, THATTIL HOUSE, LALUR DESOM,
ARANATTUKARA VILLAGE, THRISSUR TALUK, ELTHURUTH P.O.,
PIN - 680611.
3 ROY
S/O. LATE VARUNNI, THATTIL HOUSE, LALUR DESOM,
ARANATTUKARA VILLAGE, THRISSUR TALUK, ELTHURUTH P.O.,
PIN - 680611.
4 JOBY
S/O. LATE VARUNNI, THATTIL HOUSE, LALUR DESOM,
ARANATTUKARA VILLAGE, THRISSUR TALUK, ELTHURUTH P.O.,
PIN - 680611.
5 JANCY
D/O. LATE VARUNNI, THATTIL HOUSE, LALUR DESOM,
ARANATTUKARA VILLAGE, THRISSUR TALUK, ELTHURUTH P.O.,
PIN - 680611. THE LEGAL HEIRS OF THE DECEASED A1 ARE
IMPLEADED AS ADDL. A2 TO A5 VIDE ORDER DATED 28.11.2023
IN IA 337/2012.
BY ADVS.
SRI.DINESH MATHEW J.MURICKEN
SRI.P.V.BALAKRISHNAN
RFA NO. 165 of 2004 2 2026:KER:31402
RESPONDENTS/PLAINTIFFS 1&3 TO 7/ADDL.RESPONDENTS:
1 ROSY
D/O. THATTIL RAPPAI, CHAKKAMUCK DESOM, POONKUNNAM
VILLAGE, THRISSUR TALUK.
2 GEORGE,
KANIMANGALAM VILLAGE, KANIMANGALAM DESOM, THRISSUR
TALUK. [DIED]
3 ALPHONSA
W/O. LATE KOCHAPPAN, VRINDAVAN ROAD, CHIYYARAM DESOM,
OLLUR VILLAGE, THRISSUR TALUK.
4 MILAN
S/O. LATE KOCHAPPAN, VRINDAVAN ROAD, CHIYYARAM DESOM,
OLLUR VILLAGE, THRISSUR TALUK.
5 MILVIN
D/O. LATE KOCHAPPAN, VRINDAVAN ROAD, CHIYYARAM DESOM,
OLLUR VILLAGE, THRISSUR TALUK.
6 MILI
D/O. LATE KOCHAPPAN, VRINDAVAN ROAD, CHIYYARAM DESOM,
OLLUR VILLAGE, THRISSUR TALUK. ADDL. R7 TO R10
IMPLEADED
7 BABY
AGED 73 YEARS, W/O. LATE GEORGE, THATTIL HOUSE, WORKERS
NAGAR, KANIMANGALAM P.O., THRISSUR DISTRICT, PIN-680027
8 BIJU
AGED 53 YEARS, S/O. LATE GEORGE, THATTIL HOUSE,
VADOOKKARA, KANIMANGALAM P.O., THRISSUR DISTRICT, PIN-
680027
9 BINESH
AGED 52 YEARS, S/O. LATE GEORGE, THATTIL HOUSE,
VADOOKKARA, KANIMANGALAM P.O., THRISSUR DISTRICT, PIN-
680027
10 BRIJIL
AGED 51 YEARS, S/O. LATE GEORGE, THATTIL HOUSE, WORKERS
NAGAR, KANIMANGALAM P.O., THRISSUR DISTRICT, PIN-680027
RFA NO. 165 of 2004 3 2026:KER:31402
THE LEGAL REPRESENTATIVES OF THE SECOND RESPONDENT ARE
IMPLEADED AS ADDITIONAL RESPONDENTS 7 TO 10 VIDE ORDER
DATED 30.07.2025 IN IA 2/2025
BY ADV SHRI.K.B.GANGESH
THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON
25.03.2026, THE COURT ON 08.04.2026 DELIVERED THE FOLLOWING:
RFA NO. 165 of 2004 4 2026:KER:31402
JUDGMENT
The defendant in O.S. No. 378 of 1998 on the files of the Sub Court,
Thrissur, is the appellant herein.
2. A suit was filed for partition of the plaint schedule property by
the respondents herein. The plaintiffs and the defendant in the said suit are
the children of deceased Rappai and Mariam. The plaint schedule property
belonged to the deceased Mariam, and the plaintiffs instituted the suit
relying on a Will executed by Mariam in the year 1994. It is stated that the
mother had earlier filed O.S. No. 148 of 1995 against the defendant for
recovery of possession of the plaint schedule property, and she died on
29.01.1998. The plaintiffs contend that the defendant is in possession of the
plaint schedule property and that the Will executed in 1994 is the last Will
of the mother, but the defendant is not willing to hand over possession of
the property to them.
3. The appellant herein contends that he is a disabled person and
that his mother was residing with him. According to him, the house and the
plaint schedule property were set apart in his favour as per a registered Will
executed by Mariam as Document No. 190/1976 of the Sub Registry Office,
RFA NO. 165 of 2004 5 2026:KER:31402
Thrissur. It is further contended that after the execution of the said
registered Will, the defendant has been in exclusive possession and
enjoyment of the property for the last 24 years and has thereby perfected
title by adverse possession.
4. The trial court passed a preliminary decree partitioning the
plaint schedule property. The appellant contends that the suit for partition
is not maintainable since the deceased Mariam had filed O.S. No. 148 of 1995
before the Munsiff’s Court for recovery of possession of the plaint schedule
property from the appellant, which was dismissed. It is therefore argued
that the issue in the present suit is barred by res judicata, as the question
regarding possession of the plaint schedule property has attained finality in
O.S. No. 148 of 1995. The appellant also denies the execution of Ext.A6 Will
in 1994 by the mother, contending that it is not genuine and that no
evidence has been adduced by the plaintiffs to prove its execution.
5. It is further submitted that the plaintiffs have admitted that they
have received their respective shares in the family property and that the
plaint schedule property had been set apart for the defendant as per an oral
partition. It is also contended that the appellant has been in possession of
the property from 1976 onwards, which indicates that the shares in the
RFA NO. 165 of 2004 6 2026:KER:31402
family property had already been settled. It is further contended that Ext.A6
Will was executed on 15.02.1994 and that, as per Section 213 of the Indian
Succession Act as it then stood, the Will could not have been relied upon by
the court below unless it was probated. It is argued that Section 213 was
amended only after the execution of Ext.A6 Will, and hence the court below
ought not to have relied on Ext.A6 Will in the absence of probate.
6. It is also contended that the trial court failed to consider the
improvements made by the defendant in the property, and that the value of
such improvements exceeds the value of the property itself. According to
the appellant, these aspects ought to have been considered while passing
the judgment. The appellant therefore seeks to set aside the judgment and
decree passed by the Sub Court, Thrissur in O.S. No. 378 of 1998 and to
dismiss the suit.
7. Heard Sri. Dinesh Mathew J Murikan, for the appellant and Sri.
K.B. Gangesh for the respondent.
8. The learned counsel for the appellant relied on the decisions in
N. Kamalam (Dead) and Another v. Ayyasamy and Another [(2001) 7 SCC 503],
Yumnam ONGBI Tampha Ibema Devi v. Yumnam Joykumar Singh and Others
[(2009) 4 SCC 780], Rathnamma v. Omana (2024 KHC 7074) to contend that
RFA NO. 165 of 2004 7 2026:KER:31402
the execution of the Will has not been proved in accordance with law. The
consistent principle flowing from the above decisions is that though Section
68 of the Evidence Act permits proof of a Will by examining one attesting
witness, such witness must, in his evidence, satisfy all the requirements of
due execution as contemplated under Section 63(c) of the Indian Succession
Act, including proof of attestation by both witnesses. If the attesting witness
examined fails to prove the attestation by the other witness, it is incumbent
on the propounder to examine the other available attesting witness. Failure
to do so is fatal, and recourse to Section 71 of the Evidence Act is
impermissible unless the attesting witnesses examined deny or fail to
recollect execution. It is further contended that any suspicious
circumstances surrounding execution must be satisfactorily explained by
the propounder.
9. Per contra, the learned counsel for the respondent relied on
Devassykutty v. Visalakshy Amma (2010 KHC 6233) and Ganesan (D)
Through Lrs. v. Kalanjiam and Others (2019 KHC 5523), to contend that it
is sufficient if the attesting witness examined speaks not only to his own
attestation but also, even by necessary implication, to the attestation by the
other witness. It is argued that there is no rigid requirement that both
RFA NO. 165 of 2004 8 2026:KER:31402
attesting witnesses must be examined if the evidence of one attesting
witness, read as a whole, establishes compliance with Section 63(c) of Indian
Succession Act. It is further submitted that acknowledgment of execution by
the testator is sufficient compliance, and attestation need not necessarily
take place simultaneously or in the presence of both witnesses together, so
long as the statutory requirements are otherwise satisfied.
10. The only question that arises for consideration is whether
Ext.A6 Will has been executed in compliance with Section 63 of the Indian
Succession Act and whether the same has been proved in accordance with
Section 68 of the Indian Evidence Act.
11. Section 63 of the Indian Succession Act mandates that for a Will
to be duly executed, three essential requirements must be satisfied, namely:
(i) the testator must sign or affix his mark to the Will or it must be signed by
some other person in his presence and by his direction; (ii) such signature
or mark must be so placed as to indicate that it was intended to give effect
to the document as a Will; and (iii) the Will must be attested by two or more
witnesses, each of whom must have seen the testator sign or affix his mark
or must have seen some other person sign the will in the presence and by
direction of the testator or must have received from the testator a personal
RFA NO. 165 of 2004 9 2026:KER:31402acknowledgment of his signature or mark or of the signature of such other
person, and each of the witnesses has to sign the will in the presence of the
testator.
12. Section 68 of the Indian Evidence Act prescribes the mode of
proof of such a document and requires that at least one attesting witness be
examined to prove its execution, provided such witness is alive and capable
of giving evidence. The attesting witness so examined must not only speak
to his own attestation but must also depose, either expressly or by
necessary implication, about the attestation by the other witness so as to
establish due execution in terms of Section 63(c).
13. The Bombay High Court in Vishnu Ramkrishna and Others v.
Nathu Vithal and Others (AIR 1949 Bombay 266), laid down the following
principles:
1. For a Will to be duly executed under Section 63 of the Succession Act,
the propounder must establish (i) that the testator signed or affixed
his mark to the Will or it was signed by another in his presence and by
his direction, (ii) that such signature or mark was so placed as to
indicate an intention to give effect to the document as a Will, and (iii)
RFA NO. 165 of 2004 10 2026:KER:31402that the Will was attested by at least two witnesses, each of whom
either saw the testator sign or received from him a personal
acknowledgment of his signature, and each witness must have signed
in the presence of the testator, though not necessarily in the presence
of each other.
2. Section 68 of the Evidence Act provides a concession by permitting
proof of a Will through the examination of at least one attesting
witness, but such witness must be capable of proving the entire
execution of the Will, which includes not merely the act of signing by
the testator but compliance with all the formalities of attestation
mandated under Section 63(c).
3. If the attesting witness examined proves only his own attestation but
is unable to speak to the attestation by the other witness, the evidence
falls short of the mandatory requirements of Section 68, as proof of
execution necessarily includes proof of attestation by two witnesses in
the manner required by law. But if the one attesting witness cannot
prove execution of the will, then his evidence has to be supplemented
by the other attesting witness being called to prove the execution and
the deficiency cannot be cured by examining non-attesting witnesses
such as the scribe or parties to the document, since execution of a Will
RFA NO. 165 of 2004 11 2026:KER:31402must be proved only through attesting witnesses.
4. The statutory concession under Section 68 cannot be used to dilute the
substantive requirement of proof; where the evidence of the sole
attesting witness is insufficient, the only proper course is to call the
other attesting witness so that the due execution of the Will is proved
in full compliance with Section 63.
5. Section 71 of Evidence Act provides that if the attesting witness denies
or does not recollect the execution of the documents, its execution
may be proved by other evidence. This is a sort of a safeguard
introduced by the Legislature to the mandatory provisions of Section
68 where it is not possible to prove the execution of the will by calling
attesting witnesses but this section can only be requisitioned when the
attesting witnesses who have been called fail to prove the execution of
the will by reason of either by denying their own signatures, or
denying the signature of the testator, or having no recollection as to
the execution of the document. Section 71 has no application when
one attesting witness has failed to prove the execution of the will and
other attesting witnesses are available who could prove the execution
if they were called.
RFA NO. 165 of 2004 12 2026:KER:31402
14. Based on the said principles the Bombay High Court found that
the defendants therein failed to prove the due execution of the Will since
the attesting witness examined, out of the four attestors, only spoke of the
presence of one other attestor along with the testator, when the latter
acknowledged her thumb impression in the Will. The witness spoke of his
attestation but not that of the other. It was also held that recourse to S.71 of
the Evidence Act is impermissible without exhausting the remedy under
Section 68 of the Evidence Act of calling the available attesting witnesses.
The High Court therefore remanded the matter for further evidence of the
other three attesting witnesses said to be available to determine whether
there was due execution of the Will.
15. The principles laid down in this judgment of the Bombay High
Court was affirmed by the Hon’ble Supreme Court in Janki Narayan Bhoir v.
Narayan Namdeo Kadam [(2003) 2 SCC 91] by overruling all other judgments
in this line including Manki Kaur v. Hansraj Singh (1938 SCC OnLine Pat 45)
which took a different view from Vishnu Ramakrishnan (supra) and
resolved the issue by holding that the clause (c) of Section 63 of the
Succession Act requires and mandates attestation of a will by two or more
person as witnesses, albeit Section 68 of the Evidence Act that gives
RFA NO. 165 of 2004 13 2026:KER:31402
concession to those who want to prove and establish a will in the court of
law by examining at least one attesting witness who could prove the
execution of the will viz attestation by two witnesses and its execution in
the manner contemplated by clause (c) to Section 63 of the Succession Act.
Where one attesting witness examined fails to prove due execution of the
will, then the other available attesting witness must be called to supplement
his evidence to make it complete in all respects to comply with the
requirement of proof as mandated by Section 68 of the Evidence Act. This
position was further reiterated by the Apex Court in Raj Kumari and Others
v. Surinder Pal Sharma [(2021) 14 SCC 500] and in a recent decision in
Dinachandran K.S. v. Shyla Joseph (2025 KHC Online 8026), wherein the
Supreme Court upheld these principles and held that the Will involved in
that case stood duly proved in accordance with Section 63 of the Indian
Succession Act read with Section 68 of the Evidence Act, as the attesting
witness examined had clearly deposed to the presence of the testator and
the attesting witnesses, and to the signatures having been affixed by each of
them on the Will.
16. In the case on hand, PW2 is an attesting witness to Ext.A6 Will.
From his deposition, it is evident that the testator Mariam signed the Will in
RFA NO. 165 of 2004 14 2026:KER:31402
his presence and that he affixed his signature as an attesting witness
thereafter. PW2 has also deposed that the other attesting witness, Shinto,
had signed the Will and that he had seen Shinto signing the document as an
attestor. The evidence further discloses that after execution, the testator
along with the attesting witness proceeded to the Sub Registrar’s Office for
registration of the Will.
17. The testimony of PW2, read as a whole, clearly establishes that
the testator executed the Will in a sound disposing state of mind and that
both the attesting witnesses had signed the Will in the presence of the
testator. The deposition that PW2 saw the other attesting witness sign the
document, coupled with the sequence of events narrated, is sufficient to
infer compliance with the requirement of attestation under Section 63(c).
18. It has also come out in evidence that the whereabouts of the
other attesting witness Shinto are not known. In such circumstances, the
non-examination of the other attesting witness cannot be held against the
propounder, particularly when the evidence of PW2 substantially proves the
due execution and attestation of the Will. This is not a case where the
attesting witness examined has failed to prove the execution so as to
RFA NO. 165 of 2004 15 2026:KER:31402
necessitate the compulsory examination of the other attesting witness. On
the contrary, the evidence of PW2 satisfies the requirements of Section 68 of
the Evidence Act.
19. Section 71 of the Evidence Act has no application to the facts of
the present case, as the same is attracted only in situations where the
attesting witness examined denies or does not recollect execution. Here,
PW2 has clearly spoken to the execution and attestation of the Will, and
therefore, there is no occasion to invoke Section 71.
20. Further, there is no material on record to indicate any
suspicious circumstances surrounding the execution of the Will. The
testamentary capacity of the testator is not in dispute and the evidence on
record shows that the Will was executed voluntarily and with full
understanding of its contents. The fact that the Will is a registered
document, though not by itself conclusive, is an additional circumstance
supporting its genuineness.
21. In the above circumstances, it has to be held that Ext.A6 Will
has been duly executed in compliance with Section 63 of the Succession Act
and has been properly proved in accordance with Section 68 of the Indian
RFA NO. 165 of 2004 16 2026:KER:31402
Evidence Act. The challenge regarding non-proof of execution and
attestation is therefore liable to be rejected.
22. Given the above, there is no reason to interfere with the
judgment and preliminary decree passed by the Sub-Court, Thrissur in O.S.
No.378 of 1998.
Accordingly, the Appeal fails and is dismissed.
Sd/-
MOHAMMED NIAS C.P.
JUDGE
okb/
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