IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 6TH FEBRUARY 2008 / 17TH MAGHA 1929 RSA.No. 973 of 2005(G) ---------------------- AS.100/2002 of ADDL. DISTRICT COURT, THODUPUZHA OS.45/1998 of SUB COURT,THODUPUZHA .................... : APPELLANT/APPELLANT AND 2ND DEFENDANT: ------------------------------------------------------- BABY K.THOMAS, S/O. THOMAS, AGED 53 YEARS, KUNNAMKOTTU OLAMATTOM KARA, THODUPUZHA. BY ADV. SRI.V.L.SHENOY RESPONDENTS: PLAINTIFF/DEFENDANT 2,3 & 4/RESPONDENTS 2,3 AND 4: --------------------------------------------------------------- 1. MOLLY GEORGE, W/O. GEORGE, CHEMPARATHY, MADAKKATHANAM KARA, MANJALLUR VILLAGE 2. BABU K.THOMAS, S/O. THOMAS AMANTHURUTHIL MYLAKOMBU KARA, KUMARAMANGALAM VILLAGE. 3. LEELAMMA THOMAS, W/O.MATHEW VELLANATTU, ELAMKULAM ROAD, KALOOR P.O., COCHIN-17. 4. SUNIL K.THOMAS, S/O. THOMAS, KUNNAMKOTTU, GENERAL MANAGER, NATIONAL THERMAL POWER CORPORATION, UDUMALPETTA, TAMIL NADU-642126. BY ADV. SRI.JOSE JOSEPH ARAYAKUNNEL SRI.VARGHESE PARAMBIL FOR R1 TO R4 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 06/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. NO. 973 OF 2005 =========================== Dated this the 6th day of February, 2008 JUDGMENT Second defendant in O.S.45/1998 on the file of Sub Court, Thodupuzha is the appellant. First respondent is the plaintiff and other respondents the other defendants in the suit. A preliminary decree for partition was passed by the trial court directing division of plaint schedule properties 1, 2 and 4 into five equal shares and allotment of one such share to the plaintiff and defendants. Item No.3 was directed to be divided into 45 equal shares and allotment of 11 such shares each to defendants 1, 2 and 4 and six shares each to plaintiff and third defendant. The preliminary decree also provide that at the time of allotment of the share, house in item No.3 is to be allotted to second defendant appellant and plaintiff defendants 1, 3 and 4 are entitled to share of profits from item No.2 to 4 from the date of the R.S.A.973/2005 2 suit from the appellant and the quantum of share of profits is to be fixed in the final decree proceedings. Appellant challenged the judgment before District Court, Thodupuzha in A.S.100/2002. The judgment of the trial court was challenged on the ground that court below should have accepted Ext.B7 will and failure of the trial court to accept the will is against the evidence. Learned Additional District Judge on reappreciation of evidence found that trial court rightly found that Ext.B7 will is not a genuine will and it was not proved to be executed by Thomas the deceased testator, out of his free will and volition. Learned Additional District Judge also found that the plaint schedule properties are available for partition and the sharers are entitled to the share as found by courts below. But learned District Judge further found that trial court was not justified in directing allotment of the house in item No.3 to the appellant as that is a question which is to be decided in the final decree R.S.A.973/2005 3 proceedings. It is challenged in the second appeal. 2. Learned counsel appearing for appellant was heard. 3. The argument of learned counsel is that courts below were not justified in rejecting Ext.B7 will as its execution was proved in accordance with law. It was also argued that as the execution of Ext.B7 will was proved, courts below should have found that being the legatee appellant is entitled to the property covered under Ext.B7 will and property is not available for partition. Learned counsel also argued that in any event first appellate court was not justified in interfering with the direction to allot the house in item No.3 to the appellant. 4. On hearing the learned counsel, I do not find that any substantial question of law is involved in the appeal. 5. The question whether Ext.B7 is a genuine will executed by the deceased Thomas is a finding R.S.A.973/2005 4 of fact. The trial court on proper appreciation of evidence found that its execution was not proved. First appellate court on reappreciation of evidence confirmed the same. Appreciation of evidence by the courts below were not perverse warranting reappreciation of evidence in exercise of the powers of this court under section 100 of Code of Civil Procedure. Therefore appellant is not entitled to claim any right under will. The plaint schedule properties are available for partition. 6. The quantum of share as fixed by courts below was not disputed. The only grievance of the appellant is that house in item No.3, which was directed to be allotted to the share of appellant should not have reversed by the first appellate court. The question of allotment of the house is a question to be decided in the final decree proceedings. Appellant has not established any separate claim over the house so as to reserve the same to his share. In such circumstance, first appellate court was justified in directing the R.S.A.973/2005 5 question of allotment, including allotment of house in item No.3 to the final decree proceedings. Appeal is dismissed in limine. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006