CHAMY Vs. MANI

JUDGEMENT

(1.) This appeal is preferred against the judgment and decree passed by the Subordinate Judge, Palakkad in O.S. 254/94. The plaintiff and defendants are the children of one Velayudhan and Velayudhan died in the year 1988 leaving behind his three children and widow, Kunchu. It is the case of the plaintiff that Kunchu has executed a Will with respect to her share in favour of the plaintiff and therefore when the property is divided the plaintiff is entitled to 2/4 shares and the defendants one share each. On the other hand the first defendant would contend that the property belonged to the joint family consisting of Velayudhan and his children and therefore the sons are entitled to right by birth and the mother will be only entitled to a fractional share. It is also contended that the mother was not in a fit state of mind to execute the Will and therefore it will not confer any right on the plaintiff. It is further contended that the mother and others had entered into an agreement for the sale of their share in favour of the first defendant for a consideration of Rs. 30,000/- and towards the same he had paid Rs. 4,000/-. So that agreement also deprives the plaintiff from claiming any right over the property.

(2.) The trial Court on an analysis of the materials arrived at a decision that the Will is valid and genuine, the agreement is not enforceable and the property belonged to Velayudhan and therefore ordered division of the property into four equal shares and to allot two such shares to the plaintiff. It is against that decision the first defendant has come up in appeal.

(3.) Heard the learned Counsel for the appellant as well as the respondent. Let me first consider about the nature of the properties. It is the case of the first defendant that the property is having the character of a joint family property and that Velayudhan had acquired the property with the nucleus of the joint family. Except for the mere ipsi dexit of the first defendant no materials are forthcoming to establish that there was any joint family property or nucleus so as to obtain this property. So it is very clear that the property belonged to Velayudhan. The admission in Ext.B1 also would reveal that the property belonged to Velayudhan and the four are entitled to equal right over the property. Therefore it has to be held that the property in question belonged to Velayudhan and on his death it had devolved upon the three sons and his wife Kunchu.