JANU Vs. THANKA

JUDGEMENT

(1.) Does the mere fact that the beneficiaries had also appended their signature amongst the several attesting witnesses to the Will invalidate the disposition made thereunder Decisions on this point are far and few and none by this Court hitherto. The plaint schedule property comprising of three items originally belonged to one Vannery Raman who died on 9.12.1970. The three children of Vannery Raman by name Kochunni, Unni @ Raman and Kurumba had earlier filed a suit for partition in O.S. No. 47/1980. The suit was decreed and affirmed in appeal in A.S. No. 175/1983 whereby a preliminary decree for partition was passed. A final decree for partition followed and the sharers also took delivery of the various items of property pursuant thereto.

(2.) One of the sons of Vannery Raman by name Vasu was the first defendant in O.S. No. 47/1980 whose children have filed the suit in O.S. No. 1958/2001. The present suit has also been filed for partition of the very same property after setting aside the decree for partition in O.S. No. 47/1980. The plaintiffs contend that Vannery Raman had executed Ext. A1 unregistered Will dated 30.7.1959 as regards devolution of his assets. Item No. 1 property is bequeathed to Kochunni, Unni @ Raman and Vasu in equal shares and Item No. 3 property to Kochunni and Unni @ Raman in equal shares. The plaintiffs however concede that item No. 2 property had been assigned away by Vannery Raman during his life time itself.

(3.) It is the case of the plaintiff that the suit in O.S. No. 1958/2001 is necessitated since Ext. A1 Will could not be produced by Vasu in O.S. No. 47/1980. The entitlement of the property to the various sharers would drastically change if the bequest under the Will is given effect to. Therefore the present suit has been filed for partition after setting aside the decree in O.S. No. 47/1980 in relation to the same property.