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2002 DIGILAW 24 (KER)

Chathoth Madhavi Amma v. P. Gopalan Nair

2002-01-11

R.BHASKARAN, S.SANKARASUBBAN

body2002
Judgment :- Bhaskaran, J. Defendant is the appellant in this appeal. Suit was filed for partition of the plaint schedule properties and allotment of 5/6 share in item 1 and 3/4 share in item 2 in the plaint schedule. According to the plaintiff, the property was obtained as per Ext. A1 Will executed by one Poovaliyil Lakshmi Amma. According to the defendant, Lakshmi Amma did not execute any Will and the Will produced in the suit is a fabricated one. It is also contended that even if the Will is genuine, Lakshmi Amma was entitled to 1/2 share in the property and the share claimed by the plaintiff in the plaint is incorrect. The trial court found that the Will executed by Lakshmi Amma was genuine and the plaintiff was entitled to 5/6 share in item 1 and 3/4 share in item 2. The defendants challenges this finding. 2. In this appeal learned counsel appearing for the appellant contended that the natural heir of Lakshmi Amma has not been impleaded in the suit. Therefore, the suit was bad for non-joinder of necessary parties and the decree granted by the trial court is not in accordance with law. It is also contended that the Will has not been proved as genuine Will according to law. 3. The plaint schedule properties along with other properties were the subject matter of O.S. No. 299 of 1976 of the Munsiff's Court, Thalassery. A final decree was passed in that suit allotting the present plaint schedule item No. 1 jointly to Poovaliyil Lakshmi Amma and the defendant. Lakshmi Amma was allotted 5/6 share in item No. 1. Item No. 2 was in joint possession of Lakshmi Amma and Karunakaran, husband of the defendant by virtue of a document dated 27.6.1958. On the death of Karunakaran, his right in the property devolved on his mother Lakshmi Amma and wife Madhavi, the defendant. Therefore, Lakshimi Amma is entitled to 3/4 share in item No. 2. Since Lakshmi Amma had executed a Will dated 17.1.1983 bequeathing her rights in the properties to the plaintiff, the plaintiff is entitled to the share obtained by Lakshmi Amma. 4. The contentions of the learned counsel for the appellant that the natural heir of Lakshmi Amma has not been impleaded in the suit and that the suit is bad for non-joinder of necessary parties cannot be accepted. 4. The contentions of the learned counsel for the appellant that the natural heir of Lakshmi Amma has not been impleaded in the suit and that the suit is bad for non-joinder of necessary parties cannot be accepted. In this case, the plaintiff seeks for partition and separate possession of plaint schedule properties on the basis of the Will from the remaining share belonging to the defendant . Therefore, if the plaintiff is able to prove the genuiness of the Will he is entitled to get a decree for partition. The decision of a Civil Court dealing with the validity of a Will for the purpose of finding title in the plaintiff as a co-owner will not operate as a judgment in rem (See Alagammai and Others v. Rakkammal - A.I.R. 1992 Madras 136). 5. The only question to be decided in this appeal is whether Ext. A1 Will is genuine or not and is proved according to law. Pws 1 and 2 are attesters to Ext. A1 will. PW1 is the first attester to Ext. A1 Will. He has given evidence to the effect that the Will was signed by Lakshmi Amma in his presence and Lakshmi Amma saw him signing the Will. He is also a witness to the Will being signed in the presence of the Registrar by Lakshmi Amma. He obtained the document from the Registrar's Office. He has also given evidence to the effect that Lakshmi Amma was capable of understanding things when he signed the document. Nothing has been brought out in cross-examination to discredit the evidence of PW1. PW2 is the second attester to Ext. 1 Will. He has also given evidence to the effect that Lakshmi Amma executed the Will in his presence and he put his signature in her presence. The trial court has accepted the evidence of PWs 1 and 2 and found that the Will has been proved according to law. PW3 is the scribe, who wrote Ext. A1 Will. He has also given evidence to the effect that the Will was written on the basis of the instructions given by Lakshmi Amma and he read over and explained the contents of the document to her and she signed the Will after explaining the contents. PW4 is the Sub Registrar, before whom the document was registered . A1 Will. He has also given evidence to the effect that the Will was written on the basis of the instructions given by Lakshmi Amma and he read over and explained the contents of the document to her and she signed the Will after explaining the contents. PW4 is the Sub Registrar, before whom the document was registered . Since the Will has ben proved according to law and no suspicious circumstance has been pointed out in the execution of the Will, the trial court has accepted this Will as genuine and granted decree in favour of the plaintiff. 6. The defendant has not adduced any evidence either oral or documentary. No infirmity with regard to the proof of the Will is pointed out by the appellant's counsel. Therefore, we do not find any ground to upset the finding of the trial court with regard to the genuineness of the will. 7. Then the only other contention raised by the learned counsel appearing for the appellant is with regard to the share allotted to the plaintiff. The trial court granted 5/6 share in item No. 1 and 3/4 share in item No. 2 of the plaint schedule to the plaintiff. With regard to the share allotted in item No. 2, there is no dispute in this appeal. With regard to Item No. 1, the contention of the appellant is that both Lakshmi Amma and the defendant were allotted properties jointly and therefore they should get 1/2 right each in item No. 1. This contention cannot be accepted, since the judgment in the partition suit itself makes it clear that Lakshmi Amma has got 5/6 share in item No. 1. It is this share that was bequeathed under the Will in favour of the plaintiff. The contention with regard to the correctness of the share also is without any merit. In view of the above, we find no ground to interfere in the appeal and the same is dismissed without any order as to costs.