CHATHOTH MADHAVI AMMA Vs. P GOPALAN NAIR

JUDGEMENT

(1.) 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. 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.