IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 19TH DECEMBER 2011 / 28TH AGRAHAYANA 1933 AS.No. 765 of 1995() ----------------------------- OS.NO.67/1990 of SUB COURT, SULTHAN BATHERY .................... APPELLANT(S)/4THE DEFENDANT: ---------------------------------------------------- P.V.SURESH, S/O.PARAPPANAL KUTTAPPAN, RESIDING AT PODADIKUNNU, PURAKKADI AMSOM AND DESOM, S.BATHERY TALUK. BY ADV. SRI.M.A.T.PAI RESPONDENT(S)/ PLAINTIFF 3RD DEFENDANT & LEGAL HEIRS OF 1ST DEFENDANT 5 TO 8 --------------- 1. JANAKI, W/O.LATE PADMANABHAN, RESIDING AT AAVETHUMKUDI, ODAPPALLAM, KUPPADI AMSOM AND DESOM, KUPPADI.P.O., S.BATHERY TALUK. 2. KARTHIYANI, W/O.RAMAN, NEDUMPUZHAKUDI HOUSE, PONGINICHIKALLOOR AMSOM, PULPADI DESOM, P.O.VARADOOR, VYTHIRI TALUK. 3. CHELLAMMA, W/O.KUTTAPPAN, RESIDING AT PARAPPANAL HOUSE, PODADI KUNNU, PURAKKADI AMSOM,DESOM, SULTHAN BATHERY. 4. SUMA, D/O.KUTTAPPAN, PARAPPANAL HOUSE, PODADIKUNNU, PURAKKADI ASMOM, DESOM, SULTHAN BATHERY. 5. SUNITHA, D/O.KUTTAPPAN, PARAPPANAL HOUSE, PODADIKUNNU, PURAKKADI AMSOM, SULTHAN BATHERY. 6. SUNIL KUMAR, S/O.KUTTAPPAN, PARAPPANAL HOUSE, PODADIKUNNU, PURAKKADI AMSOM, DESOM, SULTHAN BATHERY TALUK. R1 & R2 BY ADV. SRI.V.V.SURENDRAN P.M.PADMANABHAN THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 19/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts P.BHAVADASAN, J. -------------------------------------------------------- AS No.765 of 1995-G -------------------------------------------------------- Dated this the 19th day of December 2011 Judgment The fourth defendant in a suit for partition, who suffered a preliminary decree, is the appellant. The parties and facts are hereinafter referred to as they are available before the trial court. 2. The suit was laid by one of the daughters of late Ekkoran to whom the property admittedly belonged to. The first defendant is the brother of the plaintiff and the second defendant is her mother. The third defendant is the son of the first defendant. During the pendency of the suit, the first and second defendants died and their legal heirs have been brought on the party array as additional defendants. Pointing out that on the death of Ekkoran, the property devolved on the plaintiff and defendants 1 and 3, the suit was laid claiming the share of the plaintiff. AS 765/95 2 3. The third defendant filed a written statement supporting the plaint claim. The first defendant resisted the suit by pointing out that late Ekkoran had executed a Will in favour of the fourth defendant and therefore, the plaint schedule property is not available for partition. 4. Defendants 5 to 8 also resisted the suit, pointing out that the fourth defendant had applied for probate of the Will by filing OP No.20/90 before the District Judge. According to defendants 5 to 8, the suit property was never in joint possession. 5. On the above pleadings, issues were raised. Evidence consists of Ext.A1 marked from the side of the plaintiff. No other evidence was adduced by either side. 6. The trial court, on an evaluation of the available evidence in the case, came to the conclusion that the burden was on the fourth defendant to prove that late Ekkoran had executed a Will in his favour and in the absence of any evidence to that effect, the trial court passed a preliminary decree which reads as follows : AS 765/95 3 “In view of my findings on the foregoing issues, a preliminary decree for partition is passed as under : 1) The plaint schedule property will be divided into 3 share. 2) The plaintiff will be allotted one such share. 3) The 3rd defendant is entitled to one such share. 4) The defendants 4 to 8, being the legal heirs of deceased first defendant, is entitled to the remaining one share. 5) No allotment need be made in favour of defendants 3 and defendants 4 to 8 until they pay sufficient court fee for partition. 6. The cost of the proceedings is to come out of the estate. 7. Any of the parties to the suit can move this court for the passing of a final decree.” AS 765/95 4 7. The fourth defendant, who claims to be the beneficiary under the Will assails the judgment and decree of the lower court. The learned counsel for the appellant pointed out that the lower court is not justified in decreeing the suit disregarding the fact that probate proceedings are pending before the District Court and also ignoring the Will. 8. Though the argument advanced by the learned counsel for the appellant may look attractive, on a closer scrutiny, it can be found to be without any basis whatsoever. The lower court has found that there was nothing to show that probate proceedings were pending nor was any petition filed seeking adjournment of the suit to enable the fourth defendant to obtain probate of the Will. For reasons best known to the fourth defendant, he has not produced either the original Will or a certified copy of the same. It was under these circumstances that a preliminary decree was passed by the lower court. There is nothing to show that the finding of the court below is either perverse or unwarranted by the evidence on record. AS 765/95 5 The result is that no grounds are made out warranting interference with the judgment and decree of the court below. The appeal is without any merits and it is accordingly dismissed. P.Bhavadasan, Judge sta AS 765/95 6