IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 2ND NOVEMBER 2010 / 11TH KARTHIKA 1932 AS.No. 194 of 1997(C) & CROSS APPEAL ----------------------------------------------- OS.288/1994 of ADL.SUB COURT, THALASSERY .................... APPELLANT(S): ------------------ 1. KARUVATH VILADATH KOUSALYA SUKUMARAN, D/O. LATE GOVINDAN, RESIDING AT DEVEI NIVAS, CHIRAKKARA POST, TELLICHERRY. 2. C.V. SURESH, S/O. KOUSALYA, RESIDING AT -DO- 3. C.V. RAMESH, S/O. KOUSALYA, BANK OFFICER, INDIAN BANK, PAMDALOOR, NILGIRTIS. *4. C.V. SUBIDA MOHAN, W/O. LATE MOHAN, ASSISTANT, NEW INDIA ASSURANCE COMPANY.(DIED) * IT IS RECORDED THAT 4TH APPELLANT DIED AND APPELLANT 5 & 6 ARE HEIR LEGAL REPRESENTATIVES VIDE ORDER DATED 02/06/08 ON MEMO (CF.4001/2007)DTD. 12/09/2007. 5. KAVITHA NARESH, W/O. MARESH, HOUSE WIFE, 'MOHA', PANICKER ROAD, CALICUT. 6. ANEESH MOHAN, S/O. SABIDA MOHAN, STUDENT, RESIDING AT MOHA, PANICKER ROAD, CALICUT. BY ADVS. SRI. T.A.RAMADASAN, SRI. JOJO PAUL. RESPONDENT(S): -------------------- 1. VILADATH PALATHAYI HAREEENDRA BABU, S/O. PREMANDANDAN, ENGINEER, RESIDING AT HOUSE NO.1814, 7TH A MAINA, E BLOCK, 2ND STAGE, RAJAJI NAGAR,BANGALORE - 10. 2. VILADATH PALATHAYI NARENDRA BABU, S/O. PREMANDANDAN, STUDENT, RESIDING AT -DO- ADVS. SRI.P.N.RAMAKRISHNAN NAIR SRI.P.VISWANATHAN THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 02/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs/ ODER ON C.M.P. NO. 1790/1997 IN AS 194/1997 CLOSED 02/11/2010 SD/- THOTTATHIL B. RADHAKRISHNAN, JUDGE SD/- P. BHAVADASAN, JUDGE /TRUE COPY/ P.A. TO JUDGE svs/ THOTTATHIL.B.RADHAKRISHNAN & P.BHAVADASAN, JJ. ------------------------------------------------------------------------ AS No.194 of 1997-E ------------------------------------------------------------------------ Dated 2nd November 2010 Judgment Thottathil.B.Radhakrishnan, J. This appeal and cross objection arise from a suit for partition. Two items of properties which are scheduled as item nos.1 and 2 under B schedule to the plaint are sought to be partitioned. 2. Devaki is Govindan's wife. They had four children – Kousalya, Ramunni, Madhavan and Kalliani. Kousalya is the first plaintiff and plaintiffs 2 to 6 are her children and grandchildren. Defendants 1 and 2 are the grandchildren of Ramunni. It is not in dispute that the plaintiffs and the defendants are the only surviving heirs of Govindan and Devaki. 3. According to the plaintiffs, Govindan had executed a Will on 15.07.1920. It is a registered Will. Ext.A6 is a certified copy of that Will. The original is stated to have been produced in an earlier litigation. The plea of the plaintiffs is that AS 194/97 2 the bequest made by Govindan under Ext.A6 was in favour of the thavazhi headed by Devaki and therefore, the subsequently born members of that thavazhi are also entitled to share on partition. 4. Insofar as item no.2 under B schedule is concerned, the plea is that the said property is also available for partition as a thavazhi property, though not covered by Ext.A1 Will, but traceable to Devaki. The defendants, insofar as the claim relating to item no.2 in B schedule is concerned, contended that it is covered by Ext.B5 Will executed by Kalliani, who died in 1976. 5. Insofar as Ext.A6, the alleged Will of Govindan is concerned, the court below found that there is a statement by PW1 that neither the attestors nor the scribes of Ext.A6 are alive. On such basis, the court below proceeded to treat it as a document entitled to the benefit of S.90 of the Evidence Act. However, not even the original of the Will was before court. That is a disputed document, going by the pleadings of the parties. Beyond that is the fact that presumption under Section 90 of the Evidence Act cannot be applied in the case of a Will, AS 194/97 3 as held by the Apex Court in Bharpur Singh v. Shamsher Singh (2009) 3 SCC 687). 6. The mode of proof of a Will in the manner in which it is prescribed in the Evidence Act, has not been followed in this case. As regards Ext.A6, Section 68 followed by Section 69 and other relevant provisions in the Evidence Act will govern the situation regarding proof of a Will. Even as regards Ext.B5, the alleged Will of Kalyani, the situation is not different. The mode of proof of Will as enjoined by the Evidence Act has not been resorted to. 7. With the aforesaid, the further question that arises for consideration in this appeal is as to whether the parties are governed by the Madras Marumakathayam Act (as it then prevailed) or whether they are marumakathayees. 8. Having regard to the facts and circumstances noticed above, we deem it appropriate to grant the parties another opportunity to adduce additional evidence so as to have a just and complete adjudication of the disputes between the parties. AS 194/97 4 For the aforesaid reasons, we set aside the impugned decree and judgment and make an order of remand, leaving open all issues. The parties shall appear before the court below on 2nd December 2010. They will be at liberty to adduce any further evidence, if so advised. The court below shall make every endeavour to dispose of the matter as expeditiously as possible. No costs. THOTTATHIL.B.RADHAKRISHNAN, JUDGE P.BHAVADASAN, JUDGE sta AS 194/97 5