Friday, 24 March 2017

Whether registration of will will prove its execution?

Execution of a document and registration of a

document are totally different. The formalities for attestation

contemplated under Section 63 of the Indian Succession Act

is confined to the execution of a Will and not for its

registration. A Will is not a compulsorily registrable

document.       In fact, registration has no importance at all;

whereas, registration may result in some sort of added

credibility on the proof of its execution. The presence of

identifying witnesses before the Registrar cannot be

substitute of valid attestation in the case of a Will.    The

attestation contemplated under Section 63(c) of the Indian

Succession Act is confined to the execution and not the


       25    On a perusal of Ext.B2 Will and the written

statement filed by defendants 1 to 3, it could be seen that

the date of execution of Ext.B2 Will is 21.03.2001. When

Ext.B2 Will was allegedly executed on 21.03.2001, it cannot

be said that the attestation of such a document was on

27.03.2001. The document was registered on 27.03.2001

only. When it is shown that the document was executed on

21.03.2001, that date should be the date of its execution as

well as attestation. It has clearly come out from the evidence

of DW2 and DW3, that Ext.B2 Will was not executed on

21.03.2001, which date it bears as the date of its execution.



               7TH DAY OF MARCH 2017

                      RSA.No. 779 of 2011 

           K.C.BINDU, D/O. CHOYIKUTTY,
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Thursday, 23 March 2017

Whether it is permissible to take new plea in consequential amendment?

 Rule 17 of Order VI provides for amendment of pleadings. Pleading shall mean plaint and written statement (see Order VI Rule 1). If the plaint is amended, the defendant gets a right to amend his written statement to answer the contentions put forward in the amended plaint. The defendant may file an additional written statement in respect of the matters covered by the amendment of the plaint. As provided in Rule 9 of Order VIII, no pleading subsequent to the written statement of a defendant other than by way of defence to set off or counter claim shall be presented except by leave of the Court and upon such terms as the Court thinks fit. But the Court may, at any time, require a written statement or additional written statement from any of the parties. As a matter of practice, Courts allow additional written statement to be filed after the plaint is amended. Such practice is recognised by the Supreme Court in Gurdial Singh and others v. Raj Kumar Aneja and others, MANU/SC/0077/2002 : AIR 2002 SC 1003, wherein it was held:
"18. When one of the parties has been permitted to amend his pleading, an opportunity has to be given to the opposite party to amend his pleading. The opposite party shall also have to make an application under Order 6, Rule 17 of the CPC which, of course would ordinarily and liberally be allowed. Such amendments are known as a consequential amendments. The phrase "consequential amendment" finds mention in the decision of this Court in Bikram Singh and others v. Ram Baboo and others, MANU/SC/0013/1981 : AIR 1981 SC 2036. The expression is judicially recognized. While granting leave to amend a pleading by way of consequential amendment the Court shall see that the plea sought to be introduced is by way of an answer to the plea previously permitted to be incorporated by way of amendment by the opposite party. A new plea cannot be permitted to be added in the garb of a consequential amendment, though it can be applied by way of an independent or primary amendment.
19. Some of the High Courts permit, as matter of practice, an additional pleading, by way of response to the amendment made in the pleadings by opposite party, being filed with the leave of the Court. Where it is permissible to do so, care has to be taken to see that the additional pleading is confined to an answer to the amendment made by the opposite party and is not misused for the purpose of setting up altogether new pleas springing a surprise on the opposite party and the Court. A reference to Order VI Rule 7 of the CPC is apposite which provides that no pleading shall, except by way of amendment, raise any new ground of claim or contain any allegation of fact inconsistent with the previous pleadings of the party pleading the same."
O.P.(C) No. 496 of 2011
Decided On: 27.10.2014
 Indira Bhai

Hon'ble Judges/Coram:
K.T. Sankaran, J.

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Whether civil suit becomes property of court as soon as it is filed?

This Court has come to a strange situation wherein repeatedly the suits and appeals were permitted to be withdrawn by the petitioner on the ground of formal defect. What is permitted under the court under Order XXIII Rule 1(3) is to permit the plaintiff/plaintiffs to 'withdraw from the suit' and not the suit as such. When a suit is filed, it is the property of the court and not that of the party. A party cannot be permitted to withdraw a suit; at the most he can only be permitted to withdraw from the suit.
OP(C) No. 1130 of 2015 (O)
Decided On: 24.06.2015
Asok Kumar 
 Koottala Kshethra Samithy and Ors.
Hon'ble Judges/Coram:B. Kemal Pasha, J.
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Whether accused can be prosecuted under POCSO Act even if offence of molestation took place prior to introduction of said Act?

Yet another contention advanced by learned counsel

is that, the incident took place before the introduction of the

Act. The POCSO Act came into force in the year 2012 and the

issue with respect to molestation took place much prior to

that. The incident under the consideration of the Commission

was not the issue of molestation. The issue was with respect

to the publication of the details of the victim child through face

book post, which took place on 23.05.2016 when the post was

uploaded in the face book. Therefore, in order to attract an

offence under Sec.23, the incident allegedly took place in

respect of the molestation of the child is not at all relevant.

The relevance of Sec.23 is in respect of the face book post,

which, even according to the petitioner, is after the

introduction of the Act. Therefore, there is no substance or

foundation for the contention advanced by the learned counsel



                        MR. JUSTICE SHAJI P.CHALY

                         11TH DAY OF NOVEMBER 2016

                           WP(C).No. 31378 of 2016 (V)

                     SUDHEESH KUMAR.S.R.,


            STATE OF KERALA,
                     Citation: 2017 CRLJ 443 kerala

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