IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 13TH AUGUST 2010 / 22ND SRAVANA 1932 SA.No. 529 of 1999(D) --------------------- AS.43/1997 of SUB COURT, NEDUMANGAD OS.456/1986 of PRL.MUNSIFF COURT,NEDUMANGAD .................... APPELLANTS/APPELLANTS/DEFENDANTS 3 & 7: ---------------------------------------------------- 1. BHASKARAN, S/O.KOCHAPPI, AGED 61, RESIDING AT PADMA COTTAGE, ANAND, NEDUMANGAD. 2. GOMATHI AMBILI, AGED 35 RESIDING AT -DO- -DO- -DO- BY ADV. MR.J.S.AJITHKUMAR MR.S.ASWAKUMAR MR.P.RAJMOHAN MR.T.K.ANANDA PADMANABHAN RESPONDENTS/RESPONDENTS/1ST PLAINTIFF AND DEFENDANTS 1,5,6 & 8 TO 10 AND LEGAL HEIRS OF 2ND PLAINTIFF (ADDL.RESPONDENTS 11 TO 13): ------------------------------------------------------------------------------------ 1. KOCHAPPI CHELLAN, KUNNUNPURATH VEEDU, KOOTHADI, ANADU MURI, ANADU VILLAGE (1ST DEFENDANT) 2. BHASKARAN JAYAKUMAR, PADMA COTTAGE, ANADU, NEDUMANGAD (5TH DEFENDANT) 3. GOMATHY PADMAKUMARI, RESIDING AT -DO- -DO- (6TH DEFENDANT) 4. CHELLAPPAN SASIDHARAN, KOOHTHADI VEEDU, RESIDING AT ANADU MURI, ANAD VILLAGE (8TH DEFENDANT) 5. SARASAMMA PADMAKUMARI, MUDATHIKULANGARA PUTHUVAL PUTHEN VEEDU, AMMANADAVARAM, POTHENCODE, AYIROORPARA VILLAGE (9TH DEFENDANT) (CNTD....2) SA.No. 529 of 1999(D) ::2:: 6. PADMAKUMAR PRASANTH, S/O.PADMAKUMARI, AGED 65 YEARS, RESIDING AT -DO- -DO- (10TH DEFENDANT) 7. PADMAKUMAR PRAVEEN, S/O.PADMAKUMAR, AGED 7 YEARS, RESIDING AT -DO- -DO- (11TH DEFENDANT) 8. BHARGAVI LALITHA, SANDHYA BHAVAN, PANTHADIVILA, KOLLAMKAVU, KARIPOOR (ADDL.11TH DEFENDANT) 9. LALITHA SANDHYA, D/O.SANDHYA (MINOR) OF -DO- -DO- (ADDL. 12TH DEFENDANT) 10. T.L.SANTHOSH, S/O.LALITHA (MINOR), RESIDING AT -DO- -DO- (ADDL. 13TH DEFENDANT) (RESPONDENTS 9 & 10 MINORS ARE REPRESENTED BY GUARDIAN CHARGAVI LALITHA, SANDHYA BHAVAN, PANTHADIVILA, KOLLAMKAVU, KARIPOOR.) ADV. MR.GOPAKUMAR R.THALIYAL FOR R1 & R4 MR.G.S.REGHUNATH FOR R7 & R9 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 13/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SA.No. 529 of 1999(D) ORDER ON C.M.P.NO.1399/1999 DISMISSED. 13.8.2010 SD/- HARUN-UL-RASHID, JUDGE. // TRUE COPY // P.S TO JUDGE. HARUN-UL-RASHID,J. ------------------------------ S.A.NO. OF 1999 ------------------------------- DATED THIS THE DAY OF AUGUST, 2010 JUDGMENT Defendants 3 and 7 in O.S.No.456/86 on the file of the Munsiff's Court, Nedumangad are the appellants. The appeal is directed against the judgment and decree in A.S.No.43/97 on the file of the Sub Court, Nedumangad. The suit was filed for declaration of title, possession and for partition. The trial court passed a preliminary decree for partition and separate possession of the plaintiffs' 2/5th share in the property. Defendants 3 and 7 preferred an appeal against the preliminary decree. The Lower Appellate Court dismissed the appeal confirming the preliminary decree and judgment. The parties hereinafter are referred to as the plaintiffs and defendants as arrayed in the suit. 2. Plaintiffs 1, 2, defendants 1 to 3 and deceased Kuttan are the children of one Kochappi. Kuttan died on -2- S.A.No.529/99 7/4/1986. The property was acquired originally by the parents of the abovesaid parties by sale deeds of the years 1102, 1103 and 1105. After the death of father and mother, the plaintiffs 1, 2, defendants 1 to 3 and deceased Kuttan were in possession of the properties in their capacity as the legal heirs of the deceased parents. Ext.A1 is the partition deed of the year 1981. As per Ext.A1, plaintiffs 1, 2, defendants 1 to 3 and deceased Kuttan entered into a partition dividing the properties into five shares by metes and bounds and the parties have taken possession of their respective shares. The subject matter of the present suit is the shares allotted to deceased Kuttan. In Ext.A1 partition deed plaint D schedule property was set apart to the share of Kuttan. Kuttan died unmarried. The legal heirs of Kuttan are the plaintiffs and defendants 1 to 3 and therefore the plaintiffs filed the suit for partition and separate division of 2/5 share. 3. The defendants filed a written statement. The 3rd defendant contested the suit. He denied the execution of Ext.A1 -3- S.A.No.529/99 partition deed and contended that the plaintiffs cannot claim partition on the basis of Ext.A1. It is also contended that Kuttan had executed a Will on 16/1/1986 in respect of his share in the property in favour of the children of 3rd defendant and the son of lst defendant. On the basis of the Will, the contesting defendants contended that the suit properties are not partible. Additional defendants 5 and 7 also filed written statement supporting the case of the 3rd defendant. Plaintiffs have filed a replication repudiating the contentions of the defendants 3, 5 and 7. 4. The parties adduced oral and documentary evidence. Pws.1 to 6 and Dws.1 and 2 were examined and Exts.A1, A2, B1 and C1 were marked. 5. The plaint schedule property sought to be partitioned consists of three items. According to the plaintiffs, the plaint schedule property was set apart to their brother Kuttan in Ext.A1 partition deed and that Kuttan died unmarried issueless and therefore the plaint schedule property devolved on the -4- S.A.No.529/99 plaintiffs and defendants 1 to 3. Defendants 3, 5 and 7 contended that the suit properties are not partible. The main contention raised is that late Kuttan had executed a Will in favour of defendants 4 to 8. Ext.B1 is the Will alleged to have been executed by deceased Kuttan. It is also their contention that Ext.A1 partition deed was not executed by late Kuttan. 6. Ext.A1 shows that out of the property belonged to their mother 1/6 share had already been obtained by the 3rd defendant by filing O.S.No.69/74, which is a suit for partition and the remaining 5/6 shares have been divided as per Ext.A1 partition. A reading of Ext.A1 reveals that the properties were devided by meets and bounds. It has come out in evidence that Kuttan was residing in the property allotted to his share as per Ext.A1. PW-1, the plaintiff, has given evidence that Ext.A1 partition deed has been acted upon and all the parties therein have taken possession of their respective parties. PW4 is the witness to Ext.A1. He also testified about the execution of -5- S.A.No.529/99 Ext.A1 partition deed. The court below, after appreciating the evidence on record and the circumstances leading to the execution of Ext.A1 partition deed, held that the contention that Kuttan had not accepted Ext.A1 partition cannot be upheld. The court below also held that the evidence and circumstances will clearly show that Kuttan had also accepted Ext.A1 partition. Therefore, on these findings, the court below held that the plaint schedule property belonged to deceased Kuttan and the contention of the appellants that Ext.A1 was voluntarily executed, was found against by the court below. 7. The courts below also considered the legal validity of Ext.B1 Will. The plaintiffs and defendants 1 and 2 contended that late Kuttan was not in a sound mental condition to execute such a Will and that Ext.B1 is a fabricated document. In the light of the said contention raised, both the courts below examined the genuineness of Ext.B1 Will. The propounders in the Will are the children of the 3rd defendant. The courts below rightly observed -6- S.A.No.529/99 that it is for the propounders to adduce evidence to remove all the suspicions with regard to the execution of the Will. Kuttan died on 7/4/1986. The date of execution of the Will is 15/1/1986. PW-3, who is one of the independent witnesses, gave evidence that Kuttan's mental condition was not sound and he was unable to understand the matters during the period of one year prior to his death. PW-2, who is one of the propounders, also testified before the court below that late Kuttan's mental condition was not sound and also denied the contention of the contesting defendants that the Will was voluntarily executed. The oral evidence tendered by Pws.2 and 3 were accepted by the fact finding courts. Two attestors to Ext.B1 Will were not examined. There is no reason for not examining the two attestors. The only person who was examined to prove the Will is DW-2, who is the scribe of the document. It has come out in evidence that DW-2 has signed the document only as a scribe and not as a witness. It is an admitted case that two attestors to the Will are alive. The -7- S.A.No.529/99 courts below rightly observed that there is no explanation by the 3rd defendant for not examining the two attestors. After referring to Section 68 of the Indian Evidence Act, the courts below held that the mandatory requirement under that section is not fulfilled and therefore the contesting defendants failed to prove the execution of Ext.B1 Will. The courts below rightly held that the fact that deceased Kuttan was not in a sound mental capacity and his disposing capacity is in dispute. The burden is heavy on the propounders to prove the execution of the Will beyond any doubt. It is for them to remove all such suspicions surrounding the execution of the Will, especially when the propounders are the children of the 3rd defendant. The court below concurrently found that the contesting defendants failed to discharge the burden existed on them under law. The Lower Appellate, for these reasons, upheld the findings of the trial court that Ext.B1 Will is not proved and that the said document is not genuine. On the basis of the findings entered on facts, the courts below held -8- S.A.No.529/99 that the plaintiffs are entitled to a decree for partition as prayed for. The aforesaid findings entered by the trial court, which are confirmed in appeal, are based on facts, evidence and circumstances. I find that no valid grounds are made out to interfere with the findings recorded by the courts below. No question of law much less any substantial questions of law arise for consideration in the second appeal. In the result, the appeal fails and accordingly dismissed. There will be no order as to costs. HARUN-UL-RASHID, JUDGE. kcv.