IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 7TH DECEMBER 2010 / 16TH AGRAHAYANA 1932 RSA.No. 932 of 2010() --------------------- AS.26/2008 of ADDL. DISTRICT COURT, PARAVUR OS.324/2003 of MUNSIFF COURT, PARAVUR .................... APPELLANTS/APPELLANTS/DEFENDANTS: ---------------------------------------------------- 1. VARGHESE,AGED ABOUT 38 YEARS, S/O.LATE THOMAS, CHERIYAKATTETH HOUSE,ELOOR, NORTH PARUR TALUK. 2. JOHN, AGED 28 YEARS, S/O.LATE THOMAS, CHERIYAKATTETH HOUSE,ELOOR, NORTH PARUR TALUK. BY ADV. SRI.N.K.MOHANLAL RESPONDENT(S)/RESPONDENT/PLAINTIFF: ----------------------------------- SHEELA JOHN,AGED 40 YEARS, W/O.JOHN, MANKUZHY HOUSE, NEDUNGAD KARA, NAYARAMBALAM POST, NAYARAMBALAM VILLAGE, KOCHI. ADV. SRI.P.N.RAMAKRISHNAN NAIR SRI.P.VISWANATHAN THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 29/11/2010, THE COURT ON 07/12/2010 DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ------------------------------- R.S.A.NO.932 OF 2010 (C) ----------------------------------- Dated this the 7th day of December, 2010 J U D G M E N T The defendants in a suit for partition are the appellants. Preliminary decree passed in the suit holding that the respondent/plaintiff is entitled to 1/3 rd share in the suit property, which was confirmed in appeal by the lower appellate court, is challenged in this second appeal. 2. The defendants are two brothers and the plaintiff is their sister. Suit properties consisted of two items described as plaint 'A' and 'B' schedule, having an extent of 21 cents and 22 cents respectively. Admittedly, the properties belonged to the parents. Plaint 'A' schedule, 21 cents, belonged to the father and plaint 'B' schedule, 22 cents, to the mother. Plaintiff laid the suit for her 1/3 rd share in the properties and for separate possession, alleging that her parents died intestate. The defendants resisted the R.S.A.NO.932/2010 2 suit claim filing a joint written statement contending that the plaintiff had been married away giving her due share from the property of the mother. They further contended that both father and mother had executed two Wills, and by virtue of such testamentary dispositions, both properties were bequeathed to them alone, and they are the owners in possession of the properties. Alternatively, a plea was also raised that they have prescribed title over the suit properties by adverse possession. 3. On the materials tendered, which consisted of PW1 for the plaintiff and DW.s 1 and 2 and Exts.B1 to B3 for the defendants, the trial court found that the contentions raised by the defendants to resist the claim of the plaintiff are meritless and the parents of the parties, both of them died intestate, and accordingly, plaintiff and defendants are entitled to equal shares in the properties left behind by them. A preliminary decree was passed holding that the plaintiff is entitled to 1/3 rd share in the suit properties. That decree challenged in appeal by the defendants was confirmed by the lower appellate court. R.S.A.NO.932/2010 3 Feeling aggrieved, the defendants have preferred this appeal. 4. The appeal being filed with a petition to condone delay- notice was given to the respondent/plaintiff, who then entered appearance through her counsel. Delay was condoned. 5. I heard the counsel on both sides. The defendants have proved Exts.B1 and B2 Wills examining one of the attestors, common in both testaments, but, both the courts below failed to accept those testaments on flimsy reasonings, is the submission of the learned counsel for the appellants. Documents produced with a petition to receive them as additional evidence before the lower appellate court was not considered or taken into account by that court is the further grievance espoused by the counsel to contend that there was denial of opportunity to the appellants in establishing their defence. The documents produced with a petition moved under Order XLI Rule 27 of the Code of Civil Procedure, according to the counsel, clearly demonstrate that at the time of marriage of the plaintiff, 16 cents of property R.S.A.NO.932/2010 4 belonging to the mother had been provided as her share in the property of her parents. Exts.B1 and B2 Wills have been duly proved in the case and no circumstance whatsoever has been brought out by the respondent/plaintiff to doubt the genuineness of such Wills, but the court below solely on the basis of some minor contradictions in the evidence of DW2, the attestor, refused to act upon those Wills, is the submission of the counsel contending that the decision rendered by the courts below in favour of the plaintiff is unsustainable and warrant interference by this Court. 6. Perusing the judgments rendered by the courts below with reference to the submissions made by the learned counsel for the appellants, I find no merit in the challenges mooted. The Wills, Exts.B1 and B2, both of them unregistered and purported to have been executed by the parents of the parties, were produced before the court only after the completion of the evidence of the plaintiff. No satisfactory explanation was given as to why those documents were not tendered earlier providing R.S.A.NO.932/2010 5 an opportunity to the plaintiff to examine and have a say on the merit of those instruments whatever be its worth and value. Normal rule in proving a Will is by examining both the attestors to the testament, and not one of them alone, except in cases where such examination alone is possible under the circumstances involved. DW2 was examined as the common attestor in both Exts.B1 and B2 Wills, which are alleged to have been executed by the father and mother respectively, but, with a time gap of six years. The evidence of DW2 was found not worthy of inspiring confidence by both the courts below. It has also come out from evidence that the defendants have not taken any steps on the basis of Exts.B1 and B2, by which, bequest was made to them alone excluding the plaintiff, for effecting mutation over the suit properties in their names. In such circumstances, the conclusion drawn by both the courts below to discard Exts.B1 and B2 Wills holding that the defendants have not proved due execution of such testaments by their parents is fully justified. There is absolutely no merit in the challenge canvassed as to denial of opportunity to the defendants, by the non- R.S.A.NO.932/2010 6 consideration of the additional documents produced by them before the lower appellate court. No party as of right can claim to lead additional evidence in appeal. The materials sought to be produced as additional evidence, even on the statement made by the counsel, would at best show that the plaintiff was given a portion of the property at the time of her marriage; but, that would not foreclose her right to the property of her parents who had died intestate. Testamentary disposition by the parents set up by the defendants to resist the claim for partition by the parents having been found meritless, it follows the plaintiff is entitled to her share in the suit property. There is no question of law leave alone any substantial question of law involved in the appeal, and it is dismissed. Sd/- S.S.SATHEESACHANDRAN JUDGE prp true copy