KAMALA Vs. SUJATHA AND OTHERS

JUDGEMENT

(1.) THOUGH the matter is listed for hearing on interlocutory applications to condone the delay and for granting stay, it is taken up for admission with the consent of learned Counsel for the appellant. Kamala - the first defendant in the Trial Court has challenged the judgment and decree for partition granted by the Trial Court and confirmed in appeal by the First Appellate Court.

(2.) THE facts relevant for the purpose of this appeal are as under: One Neelu Hengsu is the propositus who died in the year 1994 leaving behind three daughters and a son. Plaintiffs 1 to 8 are the children of Mailu Hengsu, the deceased plaintiff whereas the appellant herein (defendant No. 1) is the third daughter, the second defendant Girija @ Janaki is the another daughter whereas defendants 3 and 4 are the daughters of Annu Naika who is the son of Neelu Hengsu. The plaintiff sought for partition of 1/4th share in the suit properties and as her request for share was not considered by the defendants, hence a suit came to be instituted. The first defendant filed the written statement denying the allegations made and it is her specific contention that her mother Neelu Hengsu bequeathed the suit property in her favour under the Will dated 19.09.1990 and by executing it in the presence of attesting witnesses, she claims to be the absolute owner of the suit properties on the basis of Will. The Trial Court framed the issues and the plaintiff examined PW1 and in his evidence, documents Exs. P1 to P8 were marked. The defendants examined DWs. 1 to 3 and documents Exs. D1 to D23 were marked. The Trial Court held that the Will is not proved and granted 1/4th share to each of the LRs of deceased Neelu Hengsu. Aggrieved by the judgment and decree, the first defendant (appellant herein) preferred RA No. 129/2006 and it came to be dismissed on merits affirming the findings of the Trial Court. Aggrieved by the concurrent findings of the Court below, the present appeal is filed. 2. I have heard learned Counsel for the appellant.

(3.) AS could be seen from the evidence of DWs. 1 to 3, DW2 is said to be the attesting witness of the Will Ex. D23. In the Will, the testator has mentioned that she has only three daughters and she do not have a male child. It is not in dispute that Annu Naika, the father of defendants 3 and 4 was the son of Neelu Hengsu and this fact is suppressed in the Will Ex. D23. The reason for suppressing the fact that Annu Naika was the son of Neelu Hengsu is not explained by any of the witnesses examined by the defendants to prove the Will Ex. D23. This would show that there is suspicious circumstance in its execution and attestation. No material is placed on record to remove this suspicion that arose in execution of the Will.