NELLACHERY GOPALAN Vs. N. KRISHNAN

JUDGEMENT

(1.) THE defendant in a suit for partition has challenged the preliminary decree for partition passed by the trial court, which was confirmed in appeal. It was contended by the plaintiffs that the plaint schedule property measuring 10 cents with a house thereon belonged to the plaintiffs and the defendant and they are co -owners. It was stated that the mother of the first plaintiff and the defendant and also the grandmother of plaintiffs 2 and 4 to 6 were having kudikidappu right over the said property. The defendant resisted the suit contending that his mother Kalliani had executed a Will in his favour on 2.3.1991. It was an unregistered Will. Kalliani is the mother of the defendant and the first plaintiff. She died in 1994. Including the defendant Kalliani had four children and so, the plaintiffs sought for division of the property into four equal shares, out of which, the defendant is entitled to get only one share.

(2.) LEARNED counsel for the defendant/appellant has vehemently argued that Ext. B1 Will is a true and genuine Will. The courts below after analysing the evidence found that Ext. B1 could not be proved to be a genuine document. The fact that no reply was sent to the notice which preceded the suit for partition was also taken note of by the courts below to hold that Ext. B1 was subsequently concocted by the appellant to resist the suit for partition. So many suspicious circumstances surrounding the execution of the Will have been pointed out by the courts below to hold that Ext. B1 is not a true and genuine Will. I find no legal infirmity in the finding so entered by the courts below.

(3.) THE lower appellate court also did not say whether it was actually a case of reservation with valuation or without valuation. It is only found that the defendant is entitled to reservation of the house towards his share. There is nothing in the judgment to show that the house was allotted to the plaintiffs without valuation. Therefore, that is a matter to be gone into in the final decree application. It is submitted by the learned counsel for the appellant that the final decree has already been passed but, according to the learned counsel, no notice was given to the appellant in that application. That is a matter to be agitated before the proper forum. Since it was not stated in the judgments rendered by the courts below that the house was to be allotted to the plaintiffs without valuation it can only be found that the house was to be allotted to the plaintiff with valuation which in effect will be only by way of equity. However, that fact may have to be considered by the court when the final decree is challenged.