IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 13TH DECEMBER 2011 / 22ND AGRAHAYANA 1933 OP(C).NO. 4069 OF 2011(O) ---------------------------------------- OS.23/2004 OF I ADDL.SUB COURT, KOZHIKODE .................... PETITIONER: ------------------- M.V.DEVAPRASAD, AGED 58 YEARS, S/O. LATE VASUDEVAN, MADALATH HOUSE, ARANGIL DAMODARAN ROAD, NADAKAVU, CALICUT-673 011. BY ADV. SRI.N.M.MADHU SMT.C.DEVIKA RANI KAIMAL SMT.C.S.RAJANI RESPONDENT(S): -------------------------- 1. RAJALAKSHMI RAJAN, AGED 64 YEARS, D/O. LATE VASUDEVAN, RESIDING AT CHETTIPARAMBU HOUSE, U.C.COLLEGE P.O., PARUR ROAD, ALWAYE-683 102. 2. M.V.VENUGOPAL, AGED 62 YEARS, S/O. LATE VASUDEVAN, RESIDING AT SREELAKAM, ARANGIL DAMODARAN ROAD, NADAKAVU, CALICUT-673 011. 3. M.V.PRAKASH, AGED 60 YEARS, S/O. LATE VASUDEVAN, RESIDING AT 'LAKSHMI PRABHA', ARANGIL DAMODARAN ROAD, NADAKAVU, CALICUT-673 011. 4. M.V.SREELATHA, AGED 56 YEARS, W/O. DR.MOHANRAJ, "GRENS", NEAR CHRISTIAN COLLEGE, CALICUT-673 011. 5. UMA DEVI NAMBIAR, AGED 54 YEARS, D/O. LATE U.K.SANKUNNI, HOUSE NO.571, 1ST MAIN ROAD, 3RD BLOCK, RAJMAHAL VILAS STAGE II, BANGALORE-560 094. ADV. SRI.P.N.RAMAKRISHNAN NAIR FOR R1 SRI.P.VISWANATHAN FOR R1 THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 13/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P(C) NO.4069 OF 2011 APPENDIX PETITIONER(S)' EXHIBITS: EXT.P1 : TRUE COPY OF THE PLAINT IN OS 23/2004 ON THE FILES OF THE HON'BLE 1ST ADDL. SUB COURT, KOZHIKODE, DTD.14.1.2004. EXT.P2 : TRUE COPY OF THE WRITTEN STATEMENT DTD.29.3.04 FILED BY THE PETITIONER AND RESPONDENTS TWO AND THREE. EXT.P3 : TRUE COPY OF THE REPLICATION DTD.14.5.2004 FILED BY THE FIRST RESPONDENT. EXT.P4 : TRUE COPY OF THE AFFIDAVIT IN SUPPORT OF THE PETITION DTD.29.10.2011 FILED AS IA 6340/2011. EXT.P5 : TRUE COPY OF THE JUDGMENT DTD.23.11.2011 IN ORIGINAL PETITION (C)NO.3812/2011. EXT.P6 : TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE FIRST RESPONDENT TO EXT.P5. EXT.P7 : TRUE COPY OF THE ORDER DTD.7.12.2011 IN IA NO.6340/2011. RESPONDENT(S)' EXHIBITS: NIL TRUE COPY P.S. TO JUDGE THOMAS P.JOSEPH, J. ==================================== O.P(C) No.4069 of 2011 ==================================== Dated this the 13th day of December, 2011 J U D G M E N T Third defendant in O.S. No.23 of 2004 of the court of learned First Additional Sub Judge, Kozhikode is aggrieved by Ext.P7, order. 2. First respondent sued petitioner and respondents 2 onwards for partition of property left behind by the father of petitioner and respondents 1 to 4. According to the petitioner, it is specifically stated in the plaint that the suit is with respect to the properties left behind by the father and that separate proceedings will be initiated with respect to the property inherited and left behind by the mother. Petitioner and respondents 2 and 3 filed joint written statement contending that the mother had executed and registered a Will in their favour bequeathing her share in the property of the father. Certain other contentions are also raised. Grievance of petitioner is that though first respondent had specifically stated in the plaint that the litigation is confined to the property of the father and that the first respondent will be initiating proceeding with respect to the O.P(C) No.4069 of 2011 -: 2 :- property inherited by their mother, without any plea the first respondent is attempting to adduce evidence in challenge of genuineness of the Will. That according to the petitioner cannot be permitted since it is out of plea raised by the first respondent. At a time when evidence of first respondent was being recorded petitioner approached this Court with O.P(C) No.3812 of 2011 to direct learned Sub Judge to dispose of the above said application. This Court by Ext.P5, judgment directed learned Sub Judge to do so. Accordingly learned Sub Judge considered the application and dismissed the same as per Ext.P7, order which is under challenge in this proceeding. 3. Learned counsel for petitioner has taken me though the averments in plaint and the reservation made therein about right of first respondent to proceed separately against property inherited by the mother. According to the learned counsel property inherited by the mother includes the share of the mother in the property of the father and in the circumstances first respondent cannot adduce evidence as regards genuineness, attestation and execution of the Will in question. It is contended by learned counsel that without that plea, no evidence can be adduced and even if adduced, could be looked into. Certain O.P(C) No.4069 of 2011 -: 3 :- decisions are also relied on by the learned counsel in support of that proposition. 4. First respondent contended that there is a specific averment in the written statement of petitioner and respondents 2 and 3 as to their inheriting share of the deceased mother in the property of the father by virtue of the Will in question. Whether share of the mother in the property of the father is liable to the divided among all the sharers in the suit or is liable to be set apart to petitioner and respondents 2 and 3 on the strength of the Will is a matter which is to be decided in the suit and hence first respondent is entitled to adduce evidence in support of her claim that the Will is not genuine. 5. It is pointed out by the learned counsel that in the replication filed by the first respondent though the Will is disputed there is no claim made for division of share in the property of the father inherited by the deceased mother. 6. I must bear in mind that responsibility of proving due attestation and due execution of the Will is on the propounders – petitioner and respondents 2 and 3. That burden is there even if genuineness of the Will was not disputed by the first respondent not to say in this case where, first respondent filed O.P(C) No.4069 of 2011 -: 4 :- replication denying genuineness of the Will. 7. I must also bear in mind that in the present case partition of property left behind by the father including the share inherited by the mother (who died subsequent to the death of the father) is prayed for by the first respondent. Necessarily the court has to consider to whom the share inherited by the mother in the property of the father would go. It is not disputed that but for the Will in question all the legal heirs of the mother would be entitled to get share and if due execution and attestation of the Will set up by petitioner and respondents 2 and 3 is proved, necessarily the share of the mother in the property of the father inherited should go to the legatees under the Will. In that view of the matter, so far as petitioner and others are setting up the Will, the court has to decide its genuineness. It follows that the first respondent is entitled to adduce evidence in support of her plea regarding genuineness of the Will. In that view of the matter, the request to interfere with Ext.P7 cannot be accepted. Original Petition is dismissed without prejudice to the right of parties to adduce evidence regarding the genuineness or otherwise of the Will. O.P(C) No.4069 of 2011 -: 5 :- Since I am told that suit is coming up on 15.12.2011 for further evidence of the first respondent, it is directed that recording of further evidence shall be adjourned to a day after one week from 15.12.2011. Witnesses if any present on 15.12.2011 may be bound over to the adjourned day. THOMAS P. JOSEPH, JUDGE. vsv