IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 1ST JUNE 2011 / 11TH JYAISHTA 1933 RSA.No. 369 of 2011() ------------------------------- AS.NO. 139/2007 of DISTRICT COURT, PALAKKAD OS.NO. 469/2004 of PRL.MUNSIFF COURT, PALAKKAD .................... APPELLANTS/APPELLANTS/DEFENDANTS --------------------------------------------------------------- 1. CHANDRIKA, S/O.LATE PONNAN, AGED 71 YEARS, CHAKHANKALI HOUSE, KUNDASLASSERY, KONGAD AMSOM, PALAKKAD TALUK. 2. M.K.MALATHI, D/O.LATE VIDYADHARAN, AGED 46 YEARS, CHAKHANKALI HOUSE, KUNDASLASSERY, KONGAD AMSOM, PALAKKAD TALUK. 3. VIMA, D/O.VIDYADHARAN, AGED 23 YEARS, CHAKHANKALI HOUSE, KUNDASLASSERY, KONGAD AMSOM, PALAKKAD TALUK. 4. SUMA, D/O.VIDYADHARAN, AGED 21 YEARS, CHAKHANKALI HOUSE, KUNDASLASSERY, KONGAD AMSOM, PALAKKAD TALUK. BY ADV. SRI.RAJESH SIVARAMANKUTTY SRI.PREMAKUMARI.A. RESPONDENT(S): RESPONDENT/PLAINTIFF ----------------------------------------------------------------- C.P.RATNAKUMARI, W/O.M.C.SOMAN, AGED 51 YEARS, MOOPPANIL HOUSE, MELEPPURAM, OLAVAKKODE, PUDUPPARIYARAM AMSOM, PALAKKAD TALUK AND DISTRICT.PIN- 678 014 BY THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 01/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts M.SASIDHARAN NAMBIAR, J. - - - - - - - - - - - - - - - - - - - - - - - R.S.A No. 369 of 2011 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 1st day of June, 2011 J U D G M E N T Defendants in O.S No.469 of 2004 on the file of Principle Munsiff Court, Palakkad are the appellants. Respondent is the plaintiff. Respondent instituted the suit seeking partition of the plaint schedule property and allotment of her 1/3rd share. Trial court passed a preliminary decree rejecting the claim of the appellants that deceased Ponnan executed Ext.B4 Will, holding that on the death of Ponnan, his rights devolved on the first respondent widow and the respondent daughter and appellants 2 to 4, the legal heirs of the predeceased son, Vidhyadharan. Appellants challenged judgment before District Court, Palakkad in A.S No.139 of 2007. The learned District Judge confirmed the findings of the learned Munsiff and dismissed the appeal. It is challenged in the second appeal. 2. Though it is alleged in the plaint that plaint schedule property belonged to the family of Ponnan, it is the case of the appellant in the written statement itself that the property was obtained by Ponnan under partition deed and it is his absolute property. Ponnan admittedly died R.S.A No. 369 of 2011(B) -2- leaving behind first respondent daughter and Vidhyadharan, the son. Appellants 2 to 4 are the legal heirs of Vidhyadharan, who are entitled to the share due to Vidhyadharan. 3. If Ponnan died intestate, his properties are liable to be divided into three equal shares and the widow is only entitled to one share, respondent daughter is entitled to one share and legal heirs of Vidhyadharan, appellants 2 to 4 are entitled to the remaining share. The appellants by producing Ext.B4 Will contended that Ponnan had executed Ext.B4 Will, which was registered and thereunder the property was bequeathed to Vidhyadharan providing a life interest to the widow and, therefore, the properties are not available for partition. 4. As rightly found by the courts below it is for the propounder to prove the execution of the Will and also to remove the suspicion, if any, in execution of the Will. Though the attesting witness deposed that he had signed the Will, courts below on appreciation of the evidence found that execution of the Will was not proved. The fact that it is a registered Will do not devolve the liability of the propounder of the Will, to prove its execution. The Will was executed on 04.02.2003 and was registered on R.S.A No. 369 of 2011(B) -3- 05.02.2003. If the evidence of DWs 2 and 3 are believed, the Will was executed by the testator before the attesting witnesses not on 04.02.2003 but on 05.02.2003. That is sufficient to disbelieve the execution of the Will on 04.02.2003. On appreciation of the evidence, courts below rightly disbelieved execution of Ext.B4 Will and held that Ponnan died intestate. Therefore, I find no reason to interfere with the said findings of the court below. 5. Though learned counsel appearing for the appellant argued that the share due to the respondent, even if the case is admitted, could only be 1/6 share, the property belonged to Ponnan the father. He died leaving behind the widow and two sons. Each of them is entitled to one share. The respondent is, therefore, entitled to 1/3rd share and not 1/6th share. As no substantial questions of law is involved, the appeal is dismissed. Sd/- M.SASIDHARAN NAMBIAR JUDGE //TRUE COPY// P.A. TO JUDGE krj