AMMINI AMMA Vs. GOVINDAN NAIR

JUDGEMENT

(1.) Against the judgment in O.S.No.266/1993 on the file of the Additional Sub Court, Irinjalakuda, this appeal is filed by the defendant in the suit. The plaintiff filed suit for partition and separate possession of his one half share over the plaint schedule property. The case of the plaintiff is that the property originally belonged to his sister Ammukutty Amma which she obtained as per Ext. A1 partition deed. The defendant is the sister of the plaintiff. B Schedule item was transferred by Ammukutty Amma as per sale deed No.3130/83. Ammukutty Amma died on 20.07.1987 as intestate. She died unmarried and issueless. The plaintiff and defendant, who are brother and sister of Ammukutty Amma, are the only legal heirs of the deceased. As per Ext. Al partition deed Ammukutty Amma has given right to reside in the tharawad house till her death. Accordingly Ammukutty Amma was residing in the building with the defendant. Taking" advantage of the opportunity the defendant got executed a will deed without the knowledge and consent of the deceased. Plaintiff came to know about the execution of the alleged will only after the death of Ammukutty Amma. There was no circumstances to execute the will in 1971. Deceased Ammukutty Amma was an employee in the Textile Mill and she had no expectation of death during that period. If she had an intention to bequeathe the property to the defendant, she would have been incorporated it in the partition deed itself. The document was got executed fraudulently without the knowledge of the testator. The defendant filed O.P.No.27/87 before the Munsiff Court, Irinjalakuda alleging that an amount of Rs.200/- was retained in the alleged will to be given to the plaintiff. Since he refused to accept the money, O.P. was filed. Against the order passed in O.P.27/87, the plaintiff filed A.S. No.9/89. The order of the Munsiff court was set aside and the appeal was allowed. After the death of Ammukutty Amma, the defendant received the gratuity and provident fund amount for which also the plaintiff is entitled to get half share. So the suit is filed for partition and separate possession.

(2.) The defendant filed a written statement contending that the plaintiff has no right over the property. Ammukutty Amma executed a registered will No.3/1971 and she died in 1987. After the death of Ammukutty Amma by virtue of the will the defendant has become the absolute owner of the property. The parties were governed by marumakkathayam law of inheritance and traditionally marumakkathayees are more devoted to the women members of the family. Accordingly Ammukutty Amma bequeathed her right over the property to the defendant. The allegation that the will was executed fraudulently and without the knowledge and consent of Ammukutty Amma is denied. Even before the death of Ammukuty Amma, the plaintiff had knowledge about Ext.B4 will. Ammukutty Amma spent all her income from her employment to the defendant and her family. Ext.B4 is the free will and testament. Since the plaintiff refused to receive the money stipulated in Ext.B4 will, the defendant filed O.P.No.27/87. All the allegations against the will is false and frivolous. Ext.B3 is the last will and testament of the deceased. The plaintiff is not entitled to get any share over the property.

(3.) Based on the above pleadings, the court below framed six issues. The evidence in this case consists of the oral testimony of PWl and DWs. 1 to 4 and Exts. Al to A3 and Exts.B 1 to B4. The court below after considering the evidence passed a preliminary decree for partition against which this appeal is preferred by the defendant.