IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 28TH MAY 2010 / 7TH JYAISHTA 1932 AS.No. 47 of 1998 ------------------- OS.244/1989 of PRL.SUB COURT,TRIVANDRUM DATED 21/12/1996 .................... APPELLANT/2ND DEFENDANT: -------------------------------- S. VIJAYARENGAN, S/O.SREERANGAN, AGED 57, KANJIRAMKOTTU HOUSE, T.C. 27/1315, CONVENT ROAD, THIRUVANANTHAPURAM. BY ADV. SRI.G.S.REGHUNATH SRI.MOHAN JACOB GEORGE RESPONDENTS/DEFENDANTS 3 TO 6: ----------------------------------------- 1. S. LEELA, D/O.D.SOUDAMINI, AGED ABOUT 56, KOLLUMMOODU BUNGLOW, ANAYARA P.O., THIRUVANANTHAPURAM. 2. S. GOPAKUMAR, S/O.SREERANGAN, RESIDING AT ......DO........DO.... 3. S. SETHUNATH, S/O.SREERANGAN, RESIDING AT ......DO........DO.... 4. S. MADHUSOODANAN, S/O.SREERANGAN, RESIDING AT ......DO........DO.... BY ADV. SRI.K.L.NARASIMHAN THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 28/05/2010, ALONG WITH AS NO. 864 OF 1998, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.Krishnan, J. ------------------------------------------ A.S.Nos.47 & 864 of 1998 ------------------------------------------ Dated this the 28th day of May, 2010 JUDGMENT A.S.No.47 of 1998 is an appeal preferred by the second defendant in O.S.No.244 of 1989 of the Subordinate Judge's Court, Thiruvananthapuram and A.S.No.864 of 1998 is an appeal preferred by defendants 1 and 3 to 6 against the very same judgment. The trial court on consideration of the entire materials in a suit for partition had granted a decree in favour of plaintiffs 2 to 5, i.e. ¼ share and the request of the second defendant to get partition of the plaint schedule property was rejected. The brief facts necessary for the disposal of the appeal are stated as follows: 2. There was one Mayitti Velayudhan. He had a son Krishnan and daughter Valli Mandakini. Krishnan died in the year 1096, i.e. prior to the coming into force of the Exhava Act of 1100. This Krishnan had two children by name Regunathan and A.S.Nos.47 & 864 of 1998. - 2 - Soudamini. So far as the sister of Krishnan, namely Valli Mandakini was concerned, at the time of death of Krishnan she did not have any children and she alone was surviving. So the plaintiffs would contend that since the property of Krishnan had devolved upon Regunathan and Soudamini, out of the entire property, Regunathan will be entitled to ¼ right, Soudamini will be entitled to ¼ right and the remaining right would go to Valli Mandakini. This Valli Mandakini during her life time had transferred her right in favour of Soudamini and therefore, it is submitted that Soudamini is entitled to ¾ shares and plaintiffs 2 to 5 ¼ share together. Now the contention raised in the suit is that as per the law the succession is through 'misravazhi' and when it is so, even if a person is having his wife and children, only ½ of his right will devolve upon the wife and children and the remaining half right will go to 'seshakars'. It is understood that the word 'sheshakars' represents the children of the sister. So after a man dies leaving behind his wife and children and children of the sister, then as per the 'misravazhi' followed, the A.S.Nos.47 & 864 of 1998. - 3 - wife and children will be entitled to ½ right and the remaining half right will go to the children of the sister who are 'sheshakars'. So far as this case is concerned, Valli Mandakini at the time of Krishnan's death was alive without any children and, therefore, there were no children of the sister alive at the time of Krishnan's death. So even if 'misravazhi' is to be followed, since the sister's children, namely the 'seshakars' were not in existence, the property would devolve upon only on the wife and children. Therefore, when Krishnan died, the property by virtue of the system had devolved upon his two children namely, Regunathan and Soudamini. Or in other words, Regunathan and Soudamini were entitled to ¼ share each over the entire property. Now, the right of Valli Mandakini had been purchased by Soudamini and, therefore, in the entire property, Soudamini would be entitled to ¾ shares and Regunathan will be entitled ¼ share. Since Regunathan is succeeded now by plaintiffs 2 to 5 they will be entitled to that share. Or in other words, over the plaint schedule property, plaintiffs 2 to 5 will be A.S.Nos.47 & 864 of 1998. - 4 - entitled to ¼ share and the remaining shares will go to the branch of Soudamini. 3. Now, the next question is regarding an inter se dispute between the defendants. The second defendant is on one footing and defendants 3 to 6 are on another footing. The second defendant would contend that on the death of Soudamini as he is also her son he will equally succeed to the right of her and, therefore, he is entitled to partition. It is raised at the time of evidence in the case that Soudamini has executed a will and by virtue of the said will her right had devolved upon additional defendants 3 to 6 and, therefore, the second defendant will not be entitled to succeed to the branch of Soudamini on her death. It was also contended that Soudamini had granted a settlement in favour of the second defendant and that was the reason why the second defendant was excluded from inheriting the property. 4. On the other hand, a strange methodology was adopted by the Subordinate Judge. First of all, there was no contention regarding the will. Secondly, the original of the will A.S.Nos.47 & 864 of 1998. - 5 - was not produced. Only a registration copy was produced and one witness was examined as the attesting witness and the court has simply relied upon that and excluded the second defendant from inheriting the property. It is well settled principle that when title to the property is set up by virtue of a will that will has to be produced and proved. The propounders have to prove it to the satisfaction of the court and it is their duty to remove any cloud of suspicion if surrounding on the execution of the will. The fundamental obligation is to have an original of the will. Under Section 66 of the Evidence Act, there is a mandate which states that secondary evidence of the contents of the documents referred to in Section 65, clause (a), shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is, such notice to produce it as is prescribed by law; and if no notice is prescribed by law, then such notice as the Court considers reasonable under the circumstances of the case. Here, not even an attempt is made to A.S.Nos.47 & 864 of 1998. - 6 - produce the original. It is submitted that the original is pledged somewhere. It is the imperative duty of the propounders to produce that document and then prove it in accordance with law. So the materials available and the methodology adopted are not sufficient to hold the validity of the will in these type of cases. But I don't want to deprive the party their proving it if really there is a will which can be proved in accordance with law. I am informed that there is no pleading as well. Therefore, an opportunity is given to plead and prove the existence of the will so as to have a finality of the dispute between the parties. In the result, the appeal filed by the second defendant, i.e. A.S.No.47 of 1998 is allowed and in so far as the contention of the appellants in A.S.No.864 of 1998 that the plaintiffs are only entitled to 1/8 share is rejcted, the matter is remanded back to the trial court for the following purpose. (i) So far as the finding of shares is concerned, it is confirmed and it does not require any reconsideration so far as it relates to the plaintiffs. A.S.Nos.47 & 864 of 1998. - 7 - (2) Defendants 3 to 6 are permitted to have additional pleadings and they are also permitted to produce the original of the will and prove it in accordance with law and the second defendant is also entitled to file his rejoinder or whatever it may be, to resist that claim and adduce evidence in support of that contention. If the second defendant is ultimately found to be entitled to the share, then that has also to be worked out in the suit by determining the shares of each of the defendants. The parties are directed to appear before the court below on 8.7.2010. Being a very old matter special care be taken to dispose of the matter as expeditiously as possible and not later than four months from the date of appearance of the parties before the court. M.N.Krishnan, Judge vns