ELSY AND ORS. Vs. FRANCIS AND ORS.

JUDGEMENT

(1.) BOTH the appeals are from the judgment and decree in O.S. No. 598/2002 of the First Addl. Sub -Court, Thrissur, in a suit for partition. The suit stands dismissed on a finding that the disposition per Ext. B1 will govern the plaint schedule property. R.F.A. No. 101/2007 is filed by the plaintiffs and R.F.A. No. 173/2007 is filed by the first defendant.

(2.) LATE Shri Luwis and late Smt. Rosa had nine children, out of which 6 sisters are the plaintiffs; the third defendant is another sister and the two brothers are defendants 1 and 2. The first defendant is the eldest among all children and the second defendant is the youngest among the two brothers. The property scheduled is having an extent of 60.5 cents along with the building and other improvements therein which late Shri Luwis obtained as per partition deed No. 1964/1956. The plea of the plaintiffs in short is that, late Shri Luwis was in possession of the property till his death in 1988. Before his death he had not made any provision for distribution of property among his children. Thereby, the properties devolved on his wife Rosa and the plaintiffs and defendants by intestate succession. Mother Smt. Rosa died in 1999 and she also left the world without making any provision with respect to her right in the plaint schedule property and accordingly the plaintiffs and defendants became co -owners. The plaintiffs therefore sought for division of the property by metes and bounds and to allot 6/9 shares to them and the share in profits till partition. In the building in the plaint schedule property the 4th plaintiff and defendants 1 and 2 are residing and the plaintiffs were being given the share of improvements and the second defendant has been improving the property on behalf of the other sharers. On the plea that the second defendant has been attempting to deny the rights of the plaintiffs, the suit was filed.

(3.) THE second defendant in his separate written statement contended that before the death the father had executed a will. He produced the will along with the written statement. According to him, as per the will half of the items of properties including the building situated in the front portion has been bequeathed in his favour and the balance in favour of the first defendant. Stipulations have been made in respect of each of the daughters for payment of amounts to them. The details of those terms have been averred in the written statement. It is submitted that after the death of the father, the properties have jointly vested with defendants 1 and 2 and all the sharers are having knowledge about the conditions of the will and the existence of the same and nobody had any objection in the matter. He being the youngest and was remaining without any job or avocation, was granted the half right by the father. It was contended that the suit is filed at the instigation of the first defendant.