IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 9TH JANUARY 2009 / 19TH POUSHA 1930 AS.No. 629 of 1996() ---------------------------- OS.530/1992 of ADDL.SUB COURT, PALAKKAD .................... APPELLANT(S): DEFENDANT ---------------------- GANGADHARAN, S/O. CHAMI, RESIDING AT MAYILARKODE, KODUVAYOOR AMSOM, CHITTUR TALUK , PALAKKAD DISTRICT. BY ADV. SRI.V.CHITAMBARESH SRI. T.C.SURESH MENON RESPONDENT(S): PLAINTIFFS ------------------------- 1. KAMALAM, D/O.CHAMI, RESIDING MAYILARKODE, KODUVAYOOR AMSOM, CHITTUR TALUK, PALAKKAD DISTRICT. 2. SAROJINI, D/O. CHAMI, RESIDING AT TRIPUR TOWN, COIMBATORE DISTRICT , TAMIL NADU. 3. SATHYABHAMA,D/O. CHAMI RESIDING AT PIRAYIRI AMSOM, PALAKKAD TALUK. 4. NIRMALA, D/O. CHAMI, RESIDING AT SALAM TOWN, SALAM DISTRICT TAMIL NADU. 5. KUNJUKUTTY, W/O. CHAMI, RESIDING AT PIRAYIRI AMSOM, PALAKKAD TALUK. ADV. SRI.O.RAMACHANDRAN NAMBIAR,K.P.SANTHI SRI.S.M.UNNIKRISHNAN FOR ADV.COMMSR. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 09/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP. NO.38224/1996 IN AS. NO.629/1996 Dismissed 09.01.2009 SD/- M.N.KRISHNAN, JUDGE /TRUE COPY/ P.A. TO JUDGE tss M.N. KRISHNAN, J ----------------------- A.S.No. 629 OF 1996 --------------------------------- Dated this the 9th day of January, 2009 JUDGMENT This is an appeal preferred against the judgment and decree in O.S. 530/92 of the Subordinate Judge, Palakkad. The suit is one for partition filed by the wife and daughters of Chami against the son of Chami. The trial court granted a decree directing that the property be divided into 12 equal shares and allowed 7 such shares to the plaintiffs. The brief facts necessary for the disposal of the appeal are stated as follows: 2. Chami the predecessor in interest of the plaintiffs and defendant has two sons namely Gangadharan and Kesavan. There was a partition deed between the father and two sons under Ext. A1, whereby A schedule was set apart to Chami and Gangadharan together and B schedule was set apart to the share of Kesavan. It is with respect to the half share of Chami over the A schedule the suit is filed by the plaintiffs claiming partition. According to the plaintiffs the other son Kesavan is not entitled to any right over that property. So the plaintiffs prays for a division. A.S. 629/1996 -2- 3. On the other hand the defendant would contend that the father had executed a Will in the year 1982 and as per the terms of the Will, the property has to be enjoyed by his wife, 5th plaintiff in the case till her death without any power of alienation and on her death the property has to devolve upon the defendant with absolute right. In other words the Will indicates devolution of property in favour of Gangadharan with a limited interest to enjoy the property being given to 5th plaintiff in the case. The said Will is executed in the year 1982. The partition is affected in the year 1984. In order to prove the Will the defendant moved an application under Section 66 of the Evidence Act calling upon the 5th plaintiff to produce the Will. But she did not produce the Will on the ground that she is not in custody of the same. When the primary evidence is not available certainly the second evidence can be looked into. The witnesses were examined namely the attesting witness as well as the clerk of the Sub Registry Office, Koduvayur. They were examined to prove the genuineness of the Will and execution of the Will. I am informed that no replication is filed by the plaintiffs but as held by Supreme Court recently it is not a must to file a replication but can be done at the time of cross examining the witness. So the fate of A.S. 629/1996 -3- this case depends upon the execution, genuineness and credibility of the Will and also the question what will be the impact of execution of the partition deed in the year 1984 over Ext. B1. A reading of the judgment of trial court would reveal that the trial court had not considered the matter in the proper perspective but had relied upon certain decisions without applying the dictum in the decision to the facts of the case. Right from 1959 the apex court had held that the court is sitting in the arm chair of the testator and it has to analyse the evidence in the form of first regarding execution of the Will as contemplated under Section 63 of the Indian Succession Act and further the court has to be satisfied that if there is any surrounding circumstances of suspicious nature regarding the execution of the Will, it is the paramount duty of the testator to remove that suspicion. So these are all matters which the court is bound to consider. Over and above all these things it can be seen that the impleadment of Kesavan in the case is really necessary for the reason that if Ext. B1 Will is not valid then Kesavan will be also one of the legal heirs of deceased Chami and therefore his junction is also necessary for a proper determination of the suit. Therefore I feel that the entire matter requires A.S. 629/1996 -4- reconsideration. 4. Therefore the judgment and decree of the trial court are set aside and the matter is remitted back to the trial court for fresh consideration on the execution and acceptability of Ext. B1 Will and the impact of Ext. A1 over Ext. B1 Will. It can be done only after impleading Sri. Kesavan as a necessary party to the proceeding. Thereafter the court shall permit both sides to adduce both documentary as well as oral evidence in support of their respective contention and then dispose of the matter in accordance with law. Parties are directed to appear before the trial court on 19.2.2009. Being a matter of 1992, the trial court shall endeavour to dispose of the matter as expeditiously as possible. M.N. KRISHNAN,JUDGE vkm