PREMILA SURENDRAN Vs. PRASANNA CHANDRAN

JUDGEMENT

(1.) FACTS OF THE CASE: The 2nd defendant in O.S. 223 of 2004 on the file of the Subordinate judge's court, Thalassery, preferred this appeal, being aggrieved by the preliminary judgment and decree passed by the trial Court in the above suit for partition of some landed property situated within Kannur District, which was part of erstwhile Madras Presidency. The children of late Mr. Sumathi, who died on 2/10/1990, are the plaintiffs 1 to 4 and defendants 1 and 2 in the suit. (For the purpose of convenience, the parties are hereafter referred to as per their rank before the trial Court).

(2.) According to the plaintiffs, late Sumathi executed his last Will namely Exhibit A3 which was a typed Will dtd. 27/4/1989, and as per which he bequeathed the plaint schedule property covered by Ext. A1 title deed, equally among his six children. Therefore, the plaintiffs prayed for partition of the plaint schedule property into 6 equal shares and to allot 4 shares to them. They would also contend that before the execution of Ext. A3 Will, Sumathi executed Ext. A2 holographic Will dtd. 9/11/1984, in which also he bequeathed the plaint schedule property to all his six children equally. The defendants disputed the above claim of the plaintiffs and according to them, Sumathi executed a registered Will namely Ext. B10 on 19/5/1984 in which the 2nd plaintiff was excluded from inheriting the property. Therefore, they would contend that the plaint schedule property is to be partitioned as per Ext. B10. They would further contend that thereafter, Sumathi executed Ext. B2 holographic Will on 4/12/1984 and through the said Will he had cancelled all previous Wills and restored Ext. B10.

(3.) EVIDENCE AND FINDING OF THE TRIAL COURT: The evidence in the case consists of the oral testimonies of PWs 1 to 3 and DWs 1 and 2 and documentary evidence Exts.A1 to A7 and B1 to B10. After evaluating the evidence, the trial Court found that both the sides failed to prove the execution of all the above Wills and accordingly ordered to partition the plaint schedule property into six equal shares and allowed one share each to plaintiffs 1 to 4 and defendants 1 and 2. It was aggrieved by the above preliminary judgment and decree that the 2 nd defendant preferred this appeal.