V. DILEEP KUMAR Vs. V. DEVAKI AND ORS.

JUDGEMENT

(1.) Appellant is the defendant in O.S. No. 39 of 1998 of the Court of the Subordinate Judge, Vadakara. Suit was for partition. The plaint schedule property and the house therein belong to one Muthachikkandy Kunkan, husband of the 1st plaintiff and father of plaintiffs 2 to 6 and the defendant. Kunkan had two more sons who predeceased him, unmarried. Kunkan died on 30.05.1998. The suit was filed for partition of the property and separate possession of shares of the plaintiffs. The contention was that the plaintiffs and the defendant were entitled to 1/7th share each in the property. The defendant filed written statement contending that Kunkan had executed a last will and testament on 27.02.1998. Under the will, the widow and children were allotted separate shares in the property and the house and the surrounding property was bequeathed to the defendant. It was contended that the will was handed over by the 2nd attesting witness Babu to Mannan, the brother -in -law of Kunkan. The said document was handed over by Mannan to Sekharan, the husband of the 5th plaintiff, after the death of Kunkan. The court below framed the following issues.

(2.) The 1st plaintiff was examined as PW1, but no documentary evidence was adduced. The defendant examined himself as DW1, the attestor of the will as DW2, the scribe who wrote the will as DW3 and the Sub Registrar as DW4. X1 to X4 witness's Exhibits were also marked. Evidence to the effect that the testator had executed the will when he was in full possession of his faculties and that the attesting witness had seen him sign the will as well as the other witness attesting the same and that DW2 had handed over the original of the will to Mannan, the uncle of the defendant was stated in the depositions of DW1 to DW4. DW3 and DW4 also spoke of the preparation, execution and registration of the will on 27.02.1998. Exhibit B1 certified copy of the will was marked. Exhibit B2 was a photocopy allegedly handed over by DW2 to DW1.

(3.) The case of the defendant was that a will was executed by Kunkan while in possession of full testamentary capacity on 27.02.1998. The original of the will was said to be in the possession of the husband of the 5th plaintiff. In the above circumstances, the certified copy of the will was produced and was relied upon by the defendant. The attesting witness, scribe and the Sub Registrar who registered the will were examined by the defendant to prove the execution of the will. No contra evidence was forthcoming from the side of the plaintiff. However, relying on minor discrepancies in the evidence tendered on behalf of the defendant and drawing inferences about the health and testamentary capacity of Kunkan, the court below held that the will had not been properly proved by the defendant and passed a preliminary decree of partition as prayed for. This is challenged in appeal at the instance of the defendant in the suit.