IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR MONDAY, THE 15TH JUNE 2009 / 25TH JYAISHTA 1931 AS.No. 210 of 1996() -------------------- OS.25/1993 of SUB COURT, QUILANDY .................... APPELLANT: --------- MEPPATTU PARAMBIL JANU, W/O. GOPALAN, AGED 48 YEARS PILATHATTATHIL HOUSE, P.O. PONMERI VIA. BADAGARA, KOZHIKODE DISTRICT BY ADV. SRI.C.VATHSALAN RESPONDENT(S): ------------ 1. MEPPATTU PARAMBIL BALAN, S/O. POKKAN, AGED ABOUT 46 YEARS, THIRUVALLOOR AMSOM, VELLOOKKARA DESOM P.O. CHERIYANKADAVU, VIA.BADAGARA, KOZHIKODE 2. YOUNGER BROTHER RAGHAVAN, S/O. POKKAN, AGED 41 YEARS, MEPPATTU PARAMBIL, THIRUVALLOOR AMSOM VELLOOKKARA DESOM P.O. CHERIYANKADAVU, VIA. BADAGARA, KOZHIKODE DISTRICT 3. SISTER MEPPATTU PARAMBIL LEELA, D/O.POKKAN, AGED ABOUT 33 YEARS, RESIDING AT PULIYANANDY HOUSE, P.O.AROOR, VIA. PURAMERY, BADAGARA TALUK, KOZHIKODE DISTRICT ADV. SRI.PARTHASARATHY FOR R1 TO 3 & ADV. SRI. S. SHYAM THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ON 15-06-2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * A.S. NO. 210 of 1996 * * * * * * * * * * * * * * * * * * Dated: 15-06-2009 JUDGMENT The plaintiff in O.S. No. 25 of 1993 on the file of the Subordinate Judge's Court, Koyilandy is the appellant in this appeal. The said suit was one for partition of six items of immovable properties scheduled as item Nos. 1 to 6 in the plaint A schedule and for partition of 12 items of movable properties described as the plaint B schedule. The partition of A schedule immovable properties was sought after setting aside Ext.A3 assignment deed dated 20.10.1984 and Ext.A4 Will dated 17.10.1984. 2. The plaint A schedule immovable properties admittedly belonged to one Pokken who died in the year 1986. The plaintiff Janu is the daughter born to the said Pokken in his first wife. Defendants 1, 2 and 3 are the children born to Pokken in his second wife. It appears that during the subsistence of the marriage between Pokken and his second wife, he had contracted a third marriage with the 4 th defendant who died issue less pending suit. The plaintiff claimed 1/5 share over the plaint A and B schedule properties. The other 4/5 shares being conceded to defendants 1 to 4. Since pending suit the 4 th defendant who was the 3 rd wife of Pokken died, her rights over the suit properties, reverted back to the heirs of her husband by virtue of A.S. No. 210 of 1996 -:2:- Sections 15 and 16 of the Hindu Succession Act. Thereupon the plaintiff claimed ¼ share. 3. The suit was resisted with regard to both plaint A and B schedule properties. According to defendants 1 to 3, the plaint A schedule item No. 1 was assigned by the deceased Pokken to the 2 nd defendant as per Ext.A3 registered assignment deed dated 20.10.1984 of which Ext.X1 is the original. They further contended that the plaint schedule item Nos. 2 to 6 were bequeathed by Pokken in favour of the plaintiff and defendants 1 to 4 as per Ext.A4 registered Will dated 17.10.1984. 4. The court below framed 9 issues and two additional issues for trial. On the side of the plaintiff, she examined herself as PW1 and got marked Exts. A1 to A4. On the side of the defendants, 3 witnesses were examined as DWs 1 to 3 of whom DW1 is the 2 nd defendant and DWs 2 and 3 are the attesters to Ext.A4 Will. Exts. B1 to B8(d) were marked on the side of the defendants. Ext.C1 report and account submitted by the Advocate Commissioner deputed by the trial court were also marked. 5. The learned Subordinate Judge after trial, as per judgment and decree dated 30.08.1995 dismissed the suit so far as it relates to the plaint B schedule movables which were disputed as the properties left behind by Pokken. The court below, however, upheld Ext.A3 assignment deed of plaint A schedule item No. 1 in favour of D2 and Ext.A4 Will with regard to the plaint schedule item Nos. 2 to 6. As regards plaint A A.S. No. 210 of 1996 -:3:- schedule item No. 6 which was bequeathed under Ext.A4 to the 4 th defendant, (the 3 rd wife of Pokken) the court below passed a preliminary decree granting ¼ share to the plaintiff. The suit was dismissed with regard to plaint A schedule item Nos. 1 to 5. Hence this appeal by the plaintiff. 6. I heard the learned counsel appearing on either side. 7. The learned counsel appearing for the appellant/plaintiff made the following submissions before me in support of the appeal:- Pokken who was aged 72 years at the time of Ext.A4 will of the 1984, was laid up and his faculties were impaired. Even though Ext.A4 Will is alleged to have been executed on 17.10.1984, it was got registered only on 20.10.1984 along with Ext.A3 from the house of Pokken who was laid up. This itself is a suspicious circumstance. DWs 2 and 3 who figured as attestors to Ext.A4 Will, were lending lip service to defendants 1 to 3. Even though the contesting defendant would have it that the legatees under Ext.A4 are holding the properties in accordance with the bequest thereunder, the specific case of the plaintiff is that she was not aware of Ext.A4 Will and she has not obtained any properties thereunder. The court below should have set aside Ext.A3 assignment deed with regard to the plaint schedule item No. 1 and Ext.A4 Will allegedly executed by Pokkan who did not have the requisite testamentary capacity. Due execution of the Will is also not proved. A.S. No. 210 of 1996 -:4:- 8. I am not inclined to accept the challenge against Ext.A3 assignment deed and A4 registered Will. Mainly because Pokkan was aged 72 years in the year 1984 when Ext.A4 registered will was executed, there cannot be any presumption that he did not have the requisite testamentary capacity. Similarly, mainly because he was laid up and was unable to undertake a journey, it does not necessarily follow that he was deprived of his faculties. Except the interested testimony of the plaintiff examined as P.W.1 there is no evidence that Pokkan was not having the testamentary capacity or the sound disposing mind to execute Ext.A4 Will or Ext.A3 assignment deed both were registered on 20-10-1984 by the Sub Registrar effecting a residence registration at the residence of Pokkan. Dws 2 and 3 are the attestors to Ext.A4 will and both of them have testified in terms of due execution of the Will as required under Sec. 63 of the Indian Succession Act. Eventhough both of them were subjected to a searching cross-examination, the plaintiff was not able to cause any dent to their consistent testimony. The learned trial judge who had the unique advantage of seeing the witnesses and assessing their credibility have chosen to accept the testimony of Dws 1 to 3 in preference to that of the plaintiff examined as P.W.1. This Court sitting in appeal will be loathe to interfere with the said conclusion reached by the court below in the absence of any infirmity in the appreciation of evidence by the trial court . (See AIR 1983 SC 114), I do not find any error or A.S. No. 210 of 1996 -:5:- infirmity in the appreciation of evidence by the learned trial judge. Ext.A3 assignment deed was executed by Pokkan during his life time assigning the plaint schedule item No.1 to the 2 nd defendant who has been in exclusive possession of the said item ever since the assignment, paying tax etc. In fact, the original of Ext.A3 was summoned from the bank where it had been pledged by the 2 nd defendant as his title deed while availing a loan Ext.X1 is the original of Ext.A3 summoned from the bank. where the 2 nd defendant had created an equitable mortgage of plaint schedule item No. 1 by depositing Ext.X1 title deed. The said conduct of the 2 nd defendant is also consistent with the assignment given by the father in his favour. 8. It has already been seen that the contesting defendants have proved due execution of Ext. A4 will dated 17-10-1984 executed by Pokkan. Hence, the said will is not liable to be set aside. But at the same time it is pertinent to remember that the plaintiff who is the daughter born to Pokkan in his first wife has specifically pleaded that she did not get the property (plaint schedule item 4) said to have been bequeathed in her favour under Ext.A4 will. It was on the said contention that she wanted a partition of items 2 to 6 dealt with under Ext.A4. As per Ext.A4 will the plaint schedule item No.2 was bequeathed to the first defendant under the A schedule thereto, plaint schedule item Nos. 3 to 6 were bequeathed in favour of the 2 nd defendant, the plaintiff and defendants 3 and 4 respectively as A.S. No. 210 of 1996 -:6:- schedule B to E respectively. The case of the plaintiff that she has not obtained possession of the plaint schedule item No. 4 said to have been bequeathed to her under Ext.A4 gains corroboration from none other than the 2 nd defendant examined as DW1. What he had deposed before court is that after the death of Pokkan, the legatees under Ext.A4 have been keeping possession the respective properties bequeathed to them and the respective legatees have been paying the land revenue as well, but with regard to the property bequeathed to the plaintiff, DW1 paid the land revenue. He has no case that he paid the land revenue on behalf of the plaintiff. He further confessed that the boundaries with regard to the properties bequeathed under Ext.A4 will have not been demarcated. The plaintiff examined as PW1 has emphatically denied the suggestion put to her that according to the defendants an item of property had been bequeathed to her as per the will executed by the father. She maintained the denial even during her cross-examination. In fact, her statement in chief-examination that after the death of the father defendants 1 and 2 are keeping possession of the properties has not been challenged in cross-examination. This, coupled with the admission by the 2 nd defendant examined as DW1 that it was he who paid land revenue with regard to the item of property bequeathed to the plaintiff as per Ext.A4 will would re-enforce the plaintiff's contention that she is not in possession of any of the plaint A schedule properties including item No.4 thereon. A.S. No. 210 of 1996 -:7:- When the admitted fact is that the boundaries of the properties bequeathed under Ext.A4 will have not been demarcated and the evidence is to the effect that the plaintiff is not in possession of the plaint schedule item No.4 purportedly bequeathed to her under Ext.A4, she was justified in seeking partition and separate possession of her share over the plaint schedule item 2 to 6 eventhough , she is not entitled to assail Ext.A4 testamentary dispossession. Hence, over and above the preliminary decree passed by the court below for partition of the plaint schedule item No. 6, plaint schedule items 2 to 6 bequeathed under Ext.A4 will shall also be divided and separated in accordance with the prescriptions under Ext.A4 itself and the plaint schedule item No. 4 bequeathed to the plaintiff under the “C” schedule to Ext.A4 shall be separately allotted to her with liability for mesne profits to defendants 1 and 2 . It is made clear that the liability of defendants 1 and 2 to pay the mesne profits is only in respect of plaint schedule item No. 4. In the result, this appeal is allowed in part modifying as above, the preliminary decree passed by the court below. No costs. Dated this the 15 th day of June, 2009. Sd/-V. RAMKUMAR, JUDGE. ani /true copy/ A.S. No. 210 of 1996 -:8:- V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * A.S. NO. 210 of 1996 * * * * * * * * * * * * * * * * * * Dated: 15-06-2009 JUDGMENT A.S. No. 210 of 1996 -:9:- A.S. No. 210 of 1996 -:10:- V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * A.S. NO.210 of 1996 * * * * * * * * * * * * * * * * * * Dated: 25-5-2009 JUDGMENT Appellant called absent. No representation also for the appellant. The appeal is accordingly, dismissed for default. V. RAMKUMAR, (JUDGE) ani.