SURENDRAN Vs. RAVISANKAR

JUDGEMENT

(1.) Defendants 2 to 6 in a suit for partition are the appellants. A preliminary decree was passed by the trial court directing division of the plaint schedule property into two equal shares and to allot one such share to the plaintiff. According to the plaintiff, he and the first defendant who are the children of late Kesavan alone are entitled to get share in the property. They had a brother by name Ramadas, who died on 20.11.2006. It was contended by the plaintiff that Ramadas mentioned above was having mental ailments incapable of knowing the nature of acts he was doing. He had no permanent residence. At the time of death he was aged 68 years. As per Ext.A3 partition deed of 1969 the plaint schedule property measuring 1 Acre 82 cents comprised in Survey No. 1489 and 1422 was allotted to the share of Ramadas mentioned above. As per the deed his brother Sukumaran was appointed as the guardian to look after his property. According to the plaintiff, the defendant took control of the mentally ill person Ramadas. After the death of Sukumaran and till the death of Ramadas he was residing with the defendants. Because of the mental disability Ramadas was incapable of executing any document out of his free will and volition. On the death of Ramadas his right over the property devolved upon the plaintiff and the first defendant, it is contended by the plaintiff. The defendants resisted the suit contending that the deceased Ramadas had executed a registered Will bearing No. 79/96 and thus, the plaint schedule property devolved upon defendants 2 and 3 and thus, defendants 2 and 3 are in possession of the property. Thus, it was contended that the plaint schedule property was not available for partition.

(2.) Before the trial court, PW1 was examined and Exts. A1 to A7 were marked. DW1 to DW3 were examined and Exts. B1 to B4 were marked. The trial court found that Ext. B1 Will was not proved to be a genuine Will executed by Ramadas. The fact that Ramadas was having mental disability was pointed out as a reason to hold that Ext. B1 is not true. The evidence given by DW1 and DW3 was found unacceptable and so, the courts below were not inclined to accept their evidence to prove due execution and attestation of Ext. B1 Will. Thus, the contention raised by the defendants that the suit property is not partible was found against. The lower appellate court had a re-appreciation of the evidence and found that there is no acceptable evidence to hold that Ext.B1 is true.

(3.) Learned Senior Counsel Sri. N. Sukumaran has argued at length pointing out that the courts below did not appreciate the evidence correctly. The evidence would show that even though Ramadas was an idiot by birth, his idiocy could be subsequently cured and so, at the time of execution of the Will, he was in a sound and disposing state of mind and as such, the finding entered by the courts below that Ramadas was mentally incapable of executing a document is unsustainable. Whether Ramadas was an idiot or a mentally unsound person cannot have that much importance since it can be very well found that Ramadas was not having sound and disposing state of mind so as to execute Ext.B1 Will. The contention that subsequently the incapacity could be cured or got over remained unsubstantiated. Since it was the admitted fact that Ramadas was not in a position to manage the property by himself because of the mental incapacity, even as per the partition deed of 1969 his brother Sukumaran was appointed to manage his property. So much so, there can be no doubt that Ramdas was a man of non compos mentis. If as a matter of fact the mental illness or other disability could be cured by medication then certainly there would have been medical records to prove that fact. If actually Ramadas was an idiot by birth, it is incomprehensible, how it could be cured is another question that arises for consideration.