IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN THURSDAY, THE 9TH JULY 2009 / 18TH ASHADHA 1931 SA.No. 629 of 1996(G) ------------------------------- AS.44/1990 of SUB COURT, HOSDRUG OS.89/1987 of MUNSIFF COURT, HOSDRUG .................... PLAINTIFF (S)/APPELLANT/APPELLANT ---------------------- PUTHIYAKODI VELLACHI, D/O. UMBICHI AND DECEASED CHOY AMBU, RESIDING AT PAKKATH PANAYAL VILLAGE, PAKKAM P.O., HOSDRUG TALUK. BY ADV. MR.V.R.VENKATAKRISHNAN RESPONDENT(S): / RESPONDENTS DEFENDANTS 2 TO 4 ----------------------------- 1. PUTHIYAKODI CHOYICHI, D/O. UMBICHI AND LATE CHOYI RESIDING AT POOCHAKKAT, KEEKAN VILLAGE P.O. KEEKAN, HOSDRUG TALUK. 2. PUTHIYAKODI KORAN, S/O. DO. RESIDING AT VALLIYOTTADUKKAM, PANAYAL VILLAGE, P.O.PAKKAM, HOSDRUG TALUK. 3. PUTHIYAKODI NARAYANAN, S/O. ACHUTHAN, RESIDING IN KALNAD VILLAGE , KALNAD P.O., KASARAGOD TALUK. R2 & R3 BY ADVS. MR.A.P.CHANDRASEKHARAN, SMT.PRABHA R.MENON, MR.M.KRISHNAKUMAR, MR.KODOTH PUSHPARAJAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 09/07/2009 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss P.S.GOPINATHAN, J. == = = = = = = = = = = = = = = = = = SA.No.629 of 1996. = = = == = = = = = = = = = = = = = = Dated this the 9th day of July, 2009. J U D G M EN T The plaintiff is the appellant in OS.No.89 of 1987 on the file of the Munsiff Court, Hosdurg. The suit is for one for partition in respect of two items of the property. Item No.1 was purchased by Choyi Ambu along with his two brothers and one sister. Item No.2 was the self acquired property of Choyi Ambu. The plaintiff is the daughter of Choyi Ambu. The defendants 1 to 3 are the widow and two other children of Choyi Ambu. The 4th defendant is the son of a predeceased son. The first defendant after the death of her husband got a release deed in her favour from the two brothers and sister of her husband over item No.1. That right was subsequently assigned by the first defendant in favour of the 3rd defendant. Pending the suit the first defendant died. After the death of the first defendant the 3rd defendant had taken a contention that the first defendant had executed Ext.B5 will in respect of her share in favour of the 3rd defendant. Various other contentions including oral partition were also raised. Those contentions are not relevant to be mentioned as I find that I could not avoid a remand. SA.No.629 of 1996. -: 2 :- 2. After raising issues the parties were sent for trial. The appellant was examined as Pw1. The 3rd defendant and an attester of Ext.B5 will said to have been executed by the first defendant were examined as Dws.1 and 2. On the side of the appellant, Exts.A1 to A3 were marked. On the side of the respondents, Exts.B1 to B5 were marked. Two reports and two plans submitted by the commissioner were marked as Exts.C1 to C4. 3. The trial court on evaluation of the evidence on record arrived a finding that there was an oral partition in respect of 1.215 acres over which the 3rd defendant claimed exclusive right. The execution of the will was found in favour of the 3rd defendant. Consequently, a preliminary decree for partition was passed in tune with that finding . 4. Aggrieved by the judgment and decree of the trial court the plaintiff preferred appeal AS.No.44 of 1990 before the Subordinate Judge, Hosdurg. Though various grounds were urged in the appeal memorandum assailing the finding including the execution of Ext.B5 will, the lower appellate court confined its decision to a single point, “whether the oral partition alleged in the written statement is true?” The lower appellate court on appraisal of the evidence concurred with the findings rendered by the trial court. Consequently the appeal was dismissed. Now, this second SA.No.629 of 1996. -: 3 :- appeal. 5. The following are the substantial questions of law raised in the appeal memorandum. A. Has not the lower appellate court gone wrong in not considering the point raised by the appellant regarding the finding of the trial court on the genuineness of the will, though the same was specifically raised in the Appeal Memorandum? B. Was the court below justified in law in upholding the oral partition which is only partial in respect of item No.1 of the plaint schedule and which lies in a compact area as one plot? C. Should not have the trial court disregarded the evidence of Dw2, his evidence being vague, doubtful and conflicting and here that the will is not valid and genuine? D. Should not have the courts below seen that the 3rd defendant has not discharged the heavy burden cast on him in removing the telling suspicious circumstances surrounding the execution of the will, he being the propounder and the sole beneficiary under the will? E. Should not have the court below seen that, in any case, on the findings themselves the division and allotment decreed in respect of item No.1 is patently wrong? 6. Grounds No.A, C and D are relating to the finding of the trial court regarding the execution of will and failure of the lower appellate court to arrive a finding regarding the execution of Ext.B5 will. The learned SA.No.629 of 1996. -: 4 :- counsel for the respondent vehemently argued that a reading of the judgment of the lower appellate court would persuade to arrive at a conclusion that in fact, it had to be treated that the finding of the trial court regarding the execution of the will was not challenged before the lower appellate court. In the event it was challenged, and the lower appellate court failed to adjudicate upon the dispute, the remedy open to the appellant is to approach the lower appellate court for a review of the judgment. According to the appellant, all other grounds urged in the appeal memorandum, including the finding regarding the execution of Ext.B5 will, were not considered by the lower appellate court and hence assailable in this appeal. Having gone through the judgment of the first appellate court, nothing is seen in the judgment to the effect that the appellant had not urged her dispute regarding the finding of execution of Ext.B5 will, before the lower appellate court. The appeal memorandum also does not contain any endorsement that the appellant had withdrawn the specific ground raised in paragraph 5 of the appeal memorandum. In this view of the matter, the lower appellate court should have considered the contentions raised by the appellant and arrived a finding regarding the execution of the will. Of course, the appellant should have moved the lower appellate court for a SA.No.629 of 1996. -: 5 :- review of the judgment and to consider the dispute regarding the execution of Ext.B5 will. But for that reason I find that it may not be proper to conclude that the appellant has not pressed her contention regarding the execution of the will before the lower appellate court. The question of due execution of will being a question of law and facts, it has to be decided by the first appellate court and it may not be proper for this court to decide in second appeal. In the above circumstances, I find that there is no option other than to remand the case to the lower appellate court for considering the execution of the will and to arrive a finding thereon. 7. The finding of the lower appellate court regarding oral partition was also assailed. Having heard either side, it prima facie appears that it is only a question of reservation especially when the evidence on record is not sufficient to identify or locate the properties as per oral partition. Since a remand is unavoidable, I am not venturing to arrive at a conclusion, one way or other. 8. In the above circumstances, the judgment and decree under challenge are set aside and the matter is remanded back to the lower appellate court for a fresh disposal. The lower appellate court shall also consider, with reference to Exts.C1 to C4, as to whether the property as SA.No.629 of 1996. -: 6 :- described in Ext.B2 is lying separate or not. If not, the lower appellate court shall consider afresh the dispute regarding oral partition also and arrive at a finding. In the event, Ext.B2 property is lying separate and identifiable, the finding regarding the oral partition in the impugned judgment shall not be reopened. The lower appellate court shall dispose the appeal at the earliest, not later than three months from the date of receipt of records. Forward the records forthwith. Cost would come out of the estate. P.S.GOPINATHAN, JUDGE. Kvs/- SA.No.629 of 1996. -: 7 :- P.S.GOPINATHAN, J. ================== SA.No.629 of 1996. ================== JUDGMENT 9th July, 2009.