This regular second appeal against preliminary decrees in partition suits and a partition suit challenging a will was dismissed. The Court held that proof of execution under Sections 68 and 71 of the Evidence Act is a finding of fact, with no substantial question of law arising.
The appeal was dismissed.
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 SATHISH NINAN
MONDAY, THE 25TH DAY OF NOVEMBER 2019 / 4TH AGRAHAYANA, 1941
RSA.No.641 OF 2016
AGAINST THE JUDGMENT AND DECREE IN AS 185/2011 DATED 30-11-2015 OF III ADDITIONAL DISTRICT COURT, THRISSUR
AGAINST THE JUDGMENT AND DECREE IN OS 783/2005 DATED 02-08-2010 OF PRINCIPAL SUB COURT,THRISSUR
APPELLANT/APPELLANT/1ST DEFENDANT:
KRISHNA SWAMY
AGED 70 YEARS, S/O THOPPUPARAMBIL VEETTIL CHINNA SWAMY, MANNUTHY DESOM, OLLUKKARA VILLAGE, THRISSUR TALUK, PIN- 680 655
BY ADV. SRI.DINESH MATHEW J.MURICKEN
RESPONDENTS/RESPONDENTS/PLAINTIFFS & DEFENDANTS 2 & 3:
1 SULOCHANA
AGED ABOUT 67 YEARS, W/O RAGADEEPIL HARIHARAN, KOORKANCHERY VILLAGE, DESOM, THRISSUR TALUK, PIN- 680007
AGED ABOUT 56 YEARS, S/O THOPPUPARAMBIL CHINNA SWAMY, KANAKA HOME, PANANGAD P.O., KANAYANNUR TALUK, ERNAKULAM DISTRICT, PIN- 682 506
R5 BY ADV. SRI.MARTIN G.THOTTAN
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 25.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
RSA.No.641 OF 2016
2
Sathish Ninan, J.
============================== R.S.A No.641 of 2016
==========================
Dated this the 25th day of November, 2019
JUDGMENT
The preliminary decree in a suit for partition is assailed by the first defendant. The suit was concurrently decreed by the Courts below.
RSA.No.641 OF 2016
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Proof of execution in terms of Section 68 and 71 of the Evidence Act is a pure finding of fact. No question of law much less any substantial question of law arises for consideration in the appeal.
The Appeal fails and is accordingly dismissed.
Sd/- Sathish Ninan, Judge
vdv
3 issues framed by the court
Whether the failure to prove the execution of the will by attesting witness or eye-witness raises a question of law or is a finding of fact under Sections 68 and 71 of the Evidence Act.
Whether the appeal challenging the preliminary decree in a suit for partition should be allowed given the finding on proof of will execution.
Whether substantial questions of law arise regarding the courts' finding that the execution of the will was not proved.
KRISHNA SWAMY
SULOCHANA
USHA
T.C.BRINDAKUMARI
PREMAKUMARI
GOVINDA SWAMI
SATHISH NINAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
