JAYAKRISHNAN Vs. BABY

JUDGEMENT

(1.) THE second defendant in O.S. No. 340 of 2003 of the Additional Munsiff's court, Kollam is aggrieved by the decree in that suit confirmed by the IInd Additional District Court, Kollam in A.S. No. 129 of 2007.

(2.) APPELLANT and the respondents are the children of the late Devaki and Sadanandan who acquired the suit property as per assignment deed No. 6939 of 1959. After their death, the appellants and respondents effected a partition of the property as per ExtA2, partition deed No. 3085 of 1999. The first respondent/plaintiff filed the suit to set aside that partition deed, for fresh partition and for prohibitory injunction. She claimed that the late Sadanandam, the father, had executed Ext.A1, Will No. 87 of 1995 bequeathing his half share in the suit property to her but the appellant and the second respondent/first defendant who were aware of the said Will, suppressed the same from the notice of the first respondent and made her join Ext.A2, partition deed. The first respondent claimed that she learned about that Will only on 17.03.2003. Hence she claimed half share in the suit property by virtue of Ext.A1, Will and a share in the remaining half share which belonged to the late Devaki. Accordingly, she wanted fresh partition of the suit property after setting aside Ext.A2, partition deed.

(3.) THE learned counsel for appellant has contended that in view of Ext.A2, the first respondent is estopped from pleading for a fresh partition. It is also contended by the learned counsel that it was the appellant who had spent money for the marriage of the first respondent and that is why she agreed for partition as per Ext.A2, notwithstanding the Will.