Dismissed an appeal against a decree dismissing a partition suit. Upheld the trial court's finding that a registered will executed in 1974 was valid and genuine, thereby declaring the properties partible to the sons and not availailble for partition among legal heirs.
Appeal dismissed. Judgment and decree of the court below confirmed. No order as to costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT :
THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID
TUESDAY, THE 19TH JANUARY 2010 / 29TH POUSHA 1931
AS.No. 74 of 1996 ------------------OS.570/1992 of PRINCIPAL SUB COURT, PALAKKAD ....................
APPELLANTS:
BY ADV. MR.SATHISH NINAN
MR.SANTHOSH MATHEW
RESPONDENTS:
(CNTD...2)
AS.No.74 of 1996
::2::
*IT IS RECORDED THAT 2ND, 3RD, 6TH, 7TH, 8TH AND 9TH APPELLANTS AND 1ST TO 7TH AND 9TH TO 11TH RESPONDENTS ARE THE LEGAL HEIRS OF THE DECEASED 1ST APPELLANT AS PER ORDER DATED 20.11.2009 IN I.A.NO.4076/2009.
ADV. MR.SREEKUMAR CHELUR
MR.K.RAMA KUMAR, SENIOR ADVOCATE FOR R1
MR.T.RAMPRASAD UNNI FOR R1
MR.T.K.CHINNAN FOR R4, R9 AND R11.
THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 19/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
AS.No.74 of 1996
ORDER ON C.M.P.NO.346/1996 IN A.S.NO.74/1996
DISMISSED.
19.1.2010
SD/- HARUN-UL-RASHID, JUDGE.
// TRUE COPY //
P.A TO JUDGE.
HARUN-UL-RASHID, J.
A.S.No.74 of 1996 - A
Dated this the 19th day of January, 2010
J U D G M E N T
The plaintiffs in O.S.No.570 of 1992 on the file of the Sub Court, Palakkad are the appellants. The plaintiffs, nine in number, filed the suit for partition. On the basis of the finding recorded by the trial court that Ext.B1 will is true, genuine and validly executed by deceased Appu Mannadiar, court below held that the plaint schedule properties are not partible and hence the
suit was dismissed with costs. Aggrieved by the decree and judgment dated 25.10.1995, plaintiffs have preferred this appeal. Parties hereinafter referred to as the plaintiffs and defendants as arrayed in the suit.
A.S.No.74 of 1996
2
devolved upon the plaintiffs and defendants equally on the death of Appu Mannadiar and they claimed 5/13 shares. It is pleaded that the plaintiffs came to know about a will of 1974 alleged to have been executed by Appu Mannadiar in favour of his five sons bequeathing the entire property in their favour. Plaintiffs contended that the will is not genuine, valid and not duly and validly executed and attested.
They supported the plaintiffs' claim and claimed that the sons of Appu Mannadiar are entitled to inherit the properties of their father along with the plaintiffs and other daughters.
A.S.No.74 of 1996
3
A.S.No.74 of 1996
4
defendant is in possession of Ext.B1 will. The first defendant filed necessary applications before the court below for a direction directing the fourth defendant to produce the will before the court. Though the court below issued a direction to the fourth defendant to produce the will, he failed to do so. The attesting witnesses to the will were examined as DWs 3 and 4. They have turned hostile and therefore they were cross examined by the contesting defendants' counsel. The Sub Registrar was examined as DW1.
A.S.No.74 of 1996
5
A.S.No.74 of 1996
6
therefore he was not examined. Ext.B1 will shows that both the witnesses went to the Sub Registrar's office and identified as attestors before the Sub Registrar and they have also acted as identifying witnesses. The certificate of registration executed by the executant, identified by the two witnesses proved that the executant was present before the Sub Registrar and he was identified by the two witnesses and that the executant had affixed his signature and left thumb impression. The executant and the witnesses had put their signatures and left thumb impressions in the presence of others. The court below disbelieved the testimonies of DWs 3 and 4 that they did not see the attestor nor identified him before the Sub Registrar. Court below was compelled to draw an adverse inference from the evidence of defendants 3 and 4 and noted that they have identified the executant before the Sub Registrar. The circumstances discussed and appreciated by the court below and the adverse inference drawn by the court below are justified in the facts and circumstance of the case. The court below also examined the subsequent events including the conduct of the parties after the execution of Ext.B1 will. The said circumstances
A.S.No.74 of 1996
7
are discussed in detail in paragraph 10 of the judgment. The court below referred to the notice issued on behalf of 7th defendant dated 28.3.1990 marked as Ext.B6 demanding partition of the properties to defendants 1, 2 and 4. Ext.B7 is the reply. In Ext.B7 there is reference to the registered will executed on 26.5.1974. It is also intimated to the 7th defendant in the said reply that the properties devolved upon the five sons as per the will on the death of the testator. The 7th defendant was also informed that the five sons are in separate possession of the properties. The trial court also relied on Ext.B2 assignment dated 6.5.1992 by which the third defendant has sold items 9 and 10 in the will to the first defendant. Title to the property referred to in Ext.B2 is that of Appu Mannadiar and the execution of Ext.B1 will. The trial court also had taken note of the fact that the first defendant's contention that the house obtained by the second defendant as per the will has been sold by him and he has purchased one acre of land out of the sale proceeds. The circumstances and the conduct of the parties subsequent to the execution of the will also go to show that the properties are in the possession of the sons in terms of Ext.B1 will after the death
A.S.No.74 of 1996
8
of the father. The court below also referred to the testimony of PW1 where in she admitted that the tax receipts stands in the name of his sons after the death of his father. That was also taken as a circumstance to conclude that Ext.B1 will was acted upon and the legasees are in possession of the properties as per the will. The contentions raised by the first defendant that the daughters were given ornaments and utensils at the time of marriage and that they are living with their husbands; that sons alone stay with the father; that the parties follow marumakkathayam law of inheritance; that the execution of the will itself would be to prevent the daughters from inheriting his property and to see that the five sons are given the property are also appreciated in the right manner. After giving all the items of properties to the five sons, there are other provisions in the will provided for protecting the interest of the wife of the executant. The sons are obliged to supply certain amount of paddy periodically to the mother and the mother was given the freedom to reside in the family house till her death. All the above said facts and circumstances are well appreciated and well considered by the trial court leading to the conclusion that Ext.B1 will is true,
9
A.S.No.74 of 1996
genuine and validly executed by Appu Mannadiar in favour of his five sons. In such circumstances the finding of the court below that the properties are not available for partition has to be upheld. No other questions arises for consideration in this appeal.
In the result, the appeal fails, and, the judgment and decree passed by the court below are confirmed, accordingly, the appeal stands dismissed. No order as to costs.
HARUN-UL-RASHID, JUDGE.
bkn/-
3 issues framed by the court
Whether the trial court correctly upheld the validity of a will allegedly executed in 1974 bequeathing properties to the testator's sons.
Whether the suit for partition of properties covered by the will is maintainable against the legatees.
Whether the adverse inference drawn by the lower court against hostile attesting witnesses was justified.
KUTTY MANNADIAR
KAVERI
VELLAMMA
MEENAKSHI
VASU MANNADIAR
SATHYABHAMA
HARUN-UL-RASHID
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
