IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 20TH JULY 2010 / 29TH ASHADHA 1932 AS.No. 374 of 2002() ---------------------------- OS.382/1987 of PRL.SUB COURT,IRINJALAKUDA .................... APPELLANT(S): DEFENDANTS 1 TO 3 ------------------------------------------------------- 1. LATHEEF, S/O. MANANKERI KHADER, RESIDING NEAR THE CHERAMAN MALIK NAGAR, KODUNGALLUR, ARAKULAM, LOKAMALESWARAM VILLAGE, KODUNGALLUR TALUK. 2. SHANAVAS, S/O. LATE MANANKKERI MUHAMMEDALI, RESIDING AT THE HOUSE OF KARUKAPPADATH ABOOBAKKER, ERIYAD DESOM, DO. VILLAGE, DO. TALUK. 3. SHAJI, S/O. LATE MANANKERI MUHAMMED ALI, RESIDING AT DO. DO. BY SRI.N.N.SUGUNAPALAN, SENIOR ADVOCATE RESPONDENT(S): PLAINTIFFS & DEFENDANTS 4 & 5 ----------------------------------------------------------------------------- 1. RASSIA, D/O. ERAMANGALATH ABDUL KHADER AND W/O. LATE MUHAMMED ALI, MANANKKERY PADAKULAM DESOM, METHALA VILLAGE, KODUNGALLUR TALUK. 2. PRIYA (MINOR), D/O. 1ST RESPONDENT AND LATE MUHAMMED ALI, DO. DO. DO. (REPRESENTED BY MOTHER AND GUARDIAN 1ST RESPONDENT RASSIA) 3. ANSHAD (MINOR), BR/O 2ND RESPONDENT, DO. DO. (REPRESENTED BY MOTHER AND GUARDIAN 1ST RESPONDENT RASSIA). 4. SYED MOHAMMED, S/O. MANANKERI KADER, ATHANI DESOM, METHALA VILLAGE, KODUNGALLUR TALUK. 5. SAKHINA, W/O. 4TH RESPONDENT SYED MOHAMMED, DO. DO. R1 TO R3 BY ADVD. SRI.P.VIJAYA BHANU R4 & R5 BY SRI.R.KRISHNAKUMAR SRI.M.GEORGE THOMAS THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 20/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss M.N. KRISHNAN, J. ........................................... A.S.NO.374 OF 2002 ............................................. Dated this the 20th day of July, 2010. J U D G M E N T This is an appeal preferred against the judgment and decree of the Subordinate Judge, Irinjalakuda in O.S.No.382/1987. I am quite unhappy that the parties after obtaining an order of remand with permission to adduce evidence, does not let in any evidence and a judgment is written merely relying upon the observations here and there. 2. The suit is one for partition. The disputed questions are with respect to the non availability of partition of items 2 and 3 of the plaint A schedule property, 12.753 cents which is in the possession of the plaintiffs and the insurance amount received by the plaintiffs after the death of one Mohammedali. Plaintiffs are the second wife and children of Mohammedali. Defendants 1 and 4 are the brothers of Mohammedali and defendants 2 and 3 are the children born to Mohammedali in his first wife. Items 1 and 2 of the plaint schedule property belonged to Mohammedali. It is contended that item 3 was purchased in the name of : 2 : A.S.NO.374 OF 2002 Mohammedali and his brother. Hence the suit for partition. 3. The defendants, on the other hand, would contend that with respect to items 2 and 3 of the plaint schedule property, there is a Will executed by Mohammedali in favour of the 4th defendant and therefore, it is not available for partition. Then it is contended that 12.753 cents in Sy.No.128/1 belonged to Mohammedali which has not been included in the partition deed. So also the amount of Rs.53,972/- which is received by the first plaintiff as the nominee, is also not included and therefore partition is sought for with respect to that also. 4. In the first round of litigation, by virtue of the judgment dated 22.3.1991, the learned Subordinate Judge upheld the validity of the Will and also found that the plaint schedule item No.1 and the property claimed by the defendants are partible and ordered division of the property. Against that decision, the plaintiffs moved an appeal as A.S.No.712/1993 and this Court had set aside the judgment and decree of the trial court and remanded the case to the trial court with liberty to the parties to give opportunity. The court below had been directed to dispose of : 3 : A.S.NO.374 OF 2002 the matter afresh in accordance with law. Unfortunately after the remand, none of the parties adduced any evidence but the learned Subordinate Judge held that the Will is not valid, oral gift is proved and therefore changed the initial preliminary decree passed by him. It is against that decision, the appeal is preferred. 5. So far as the Will in favour of the 4th defendant is concerned, this Court observed that evidence of Dws 2 and 3 are interesting but this Court found that when it is a Will in favour of a person other than a heir, under the Mohammedan's law, when it exceeds one third of the total property of the testator, consent of the other owners are necessary to validate the Will. This Court found that since no evidence is adduced on that basis, the matter requires reconsideration. This Court had observed that there appears to be exclusion of the heir and therefore there is suspicious circumstance surrounding the execution of the Will. Exclusion of natural legal heir does not ipso facto lead to the conclusion that the Will is invalid or it is surrounded by suspicions circumstances. All depends upon the facts which is let in evidence by the parties for proper : 4 : A.S.NO.374 OF 2002 appreciation of the matter. It is to be stated that no additional evidence has been adduced and the trial court has just reversed its decision and made it on the basis of the observations made by this Court. These observations were made by this Court in order to draw the attention of the learned Subordinate Judge regarding the principles to be borne in mind while considering the validity of a Will. Whatever it may be, even if it is found that the Will is valid and genuine, since particulars are lacking regarding the fact whether more than one third has been bequeathed, has not been considered for want of evidence. Therefore it was under these circumstances this Court was forced to make the remand and unfortunately as the parties had taken the order so light heartedly, they did not adduce evidence. But for a proper disposal of the matter, it is an essential fact, without it, this Court now also cannot do anything. Similarly regarding the validity of oral gift alleged to be given by Mohammadali in favour of his second wife, this Court had observed that under Mohammedan's law a valid oral gift can be made by a declaration of the donor and acceptance by the donee coupled with the delivery of possession of the : 5 : A.S.NO.374 OF 2002 property. Under Mohammedan's law, gift is not a compulsorily registrable document and its necessary ingredients are stated above. The most important ingredient is the delivery of possession. So there must be evidence that coupled with a declaration of the donor and acceptance of the donee, delivery of possession of the property in order to make the gift a valid one. It has not been considered in that angle especially for the reason that the parties did not care to adduce evidence before the trial court. These are all necessary inputs that are necessary to dispose of the case. It is at this juncture the learned counsel for the appellants would submit that they had entrusted a lawyer, who did not appear properly in the case and did not inform the client and it resulted in non adducing evidence which had resulted in miscarriage of justice. Similarly regarding the oral gift also, the plaintiffs have to adduce evidence to avoid partition. Therefore though hard, it has become inevitable to set aside the judgment and decree of the trial court and remand the case back to the trial court for fresh consideration in accordance with law. What ever is stated in the judgment is the guidelines to be followed and not the : 6 : A.S.NO.374 OF 2002 decision and the court below has to get itself convinced about the facts of the case and apply the law and then decide the matter in accordance with law. 6. Therefore the judgment and decree of the lower court are set aside and the matter is remitted back to the trial court for a fresh consideration after permitting both sides to adduce documentary as well as oral evidence in support of their respective contentions and then dispose of the matter in accordance with law. I earnestly hope and direct the parties to be vigilant and co-operate with the Court for a proper disposal of the matter and any default hereafter will not be tolerated and no further opportunity will be given. Parties are directed to appear before the trial court on 03.09.2010. Disposed of accordingly. M.N. KRISHNAN, JUDGE. cl : 7 : A.S.NO.374 OF 2002 M.N. KRISHNAN, J. ........................................... A.S.NO.374 OF 2002 ............................................. 20th day of July, 2010. J U D G M E N T