BY AD v. SRI.M.GOPIKRISHNAN NAMBIAR

BY ADVS. SRI.M.GOPIKRISHNAN NAMBIAR SRI.P.BENNY THOMAS SRI.P.GOPINATH SRI.K.JOHN MATHAI SRI.JOSON MANAVALAN RESPONDENT (2 ND DEFENDANT - 2 ND RESPONDENT): 1 KUMARAN NAIR, [DIED; ADDL. R2 IMPLEADED]*1 S/O NARAYANI AMMA, CHERANGATHODI VELUTHEDATH HOUSE, ELAMKULAM AMSOM, AVUNHIKKAD DESOM, P.O. CHERUKARA, PERINTHALMANNA TALUK, MALAPPURAM DISTRICT. ADDL. R2 BHARATHI, WIDOW OF KUMARAN NAIR, CHERANGATHODI VELUTHEDATH HOUSE, ELAMKULAM AMSOM, ARUNHIKKAD DESOM, P.O. CHERUKARA, PERINTHALMANNA TALUK, MALAPPURAM DISTRICT. *1 [ADDL. R2 IS IMPLEADED AS THE LEGAL REPRESENTATIVE OF THE DECEASED SOLE RESPONDENT AS PER ORDER DATED 25.11.2002 IN CMP 1121/202.] BY ADVS. T.SETHUMADHAVAN (SR.) SRI.K.JAYESH MOHANKUMAR SRI.M.KRISHNAKUMAR SMT.PRABHA R.MENON SRI.PUSHPARAJAN KODOTH THIS SECOND APPEAL HAVING COME UP FOR HEARING ON

11.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SATHISH NINAN, J. = = = = = = = = = = = = = = = = = = S.A. No.256 of 2002 = = = = = = = = = = = = = = = = = = Dated this the 11th day of January, 2024 J U D G M E N T The plaintiffs in a suit for partition are in appeal. The suit was filed claiming 3/5 shares over the plaint schedule properties 1 and 2. The suit was decreed granting 3/10 shares in plaint item No.1. The claim with regard to item No.2 was dismissed.

2. The first defendant is the daughter of one Koppa @ Kunjan and Chinnamma. The second defendant and the first plaintiff are the son and daughter of the first defendant. Plaintiffs 2 and 3 are the children of the first plaintiff.

3. According to the plaintiff, item No.1 belonged to Koppa @ Kunjan on Kanam right. On 16.04.1934 he executed Ext.A3 Gift Deed in favour of his wife Chinnamma and their daughter, the first defendant. As per Ext.A1, the first defendant and her mother purchased S.A. No.256 of 2002 -: 2 :- Jenmam right over the property. The plaintiffs claimed that it is a family property and sought for partition of 3/5 shares. As regards item No.2 it was claimed that it was taken on lease by Chinnamma and her daughter the first defendant for and on behalf of the Thavazhi.

4. The defendants on the other hand contended that items 1 and 2 are separate properties of Chinnamma and the first defendant and therefore not partible. Regarding item 2 it was contended that on 29.06.1976 Ext.B3 purchase certificate was obtained in the name of Chinnamma alone.

5. The trial court held item No.2 to be not family property and accordingly rejected the prayer for partition. As regards item No.1 it was held that in terms of Section 48 of the Madras Marumakkathayam Act there is a presumption that the gift enures to the benefit of Thavazhi, and in the absence of evidence to the contrary, it was held to be Thavazhi property. The S.A. No.256 of 2002 -: 3 :- court found that under the proviso to Section 48, the division has to be on per stirpes basis and that the share of Chinnama will devolved on the plaintiffs as members of the Thavazhi. Accordingly a decree was granted for 3/10 shares.

6. The decree and judgment was challenged in appeal. Pending the appeal, the first defendant died. The second defendant's son claimed rights under a Will dated 20.09.1990 executed by the first defendant's mother. The appellate court recorded the second defendant to be the legal heir and proceeded to dispose of the appeal. Challenging the said judgment the Second Appeal has been preferred.

7. This Court noticing that, without deciding on the validity of the Will the appeal could not be prosecuted further, invoked the provisions of Order XXII Rule 5 and called for a report from the trial court. The trial court took evidence on the genuineness of the Will S.A. No.256 of 2002 -: 4 :- dated 20.09.1990. The trial court marked the Will as Ext.X1. The attestors to the Will were examined as PWs.1 and 2.

8. Presently, the challenge in the Second Appeal is confined to the validity and proof of Ext.X1 Will.

9. I have heard learned counsel on either side on the following substantial question of law :- “Does the evidence on record prove the due execution and attestation of Ext.X1 Will in terms of Section 63 of the Indian Succession Act ?”

10. PWs.1 and 2 are the attestors to Ext.X1 Will. In their evidence they have deposed regarding the due execution and attestation, satisfying the requirement under Section 63 of the Indian Succession Act. Even in the written statement filed by the first defendant, at paragraph 7 it was specifically contended that she has executed a Will in respect of her rights bequeathing the same in favour of the second defendant. At that time S.A. No.256 of 2002 -: 5 :- there was no challenge by the plaintiffs that the first defendant suffers from any infirmity or incapacity to execute the Will. No allegations of any manner was raised against the Will and its execution. The testator herself asserted about the execution of the will, and the attestors PWs.1 and 2 have proved the execution and attestation as mandated under law.

11. The mere fact that the witness deposed that the first defendant was suffering from age related illness, or that the Will was prepared with the aid of the lawyer and advocate clerk who was appearing for the first defendant, will not in any manner militate against the genuineness or the voluntary nature of execution of the Will. This is especially so when in the written statement filed by the testator she has stated about the Will. It could not be demonstrated before the Court that the witnesses are unreliable. The evidence on record is sufficient enough to prove the genuineness, due S.A. No.256 of 2002 -: 6 :- execution and attestation of the Will. Substantial question of law is answered accordingly. No interference is called for in this appeal. The appeal fails and is dismissed. Sd/- SATHISH NINAN JUDGE kns/- //True Copy// P.S. to Judge