SAJINI Vs. P K RAJAGOPALAN

JUDGEMENT

(1.) Challenging the judgment and decree passed by the Second Additional District Court, Kozhikode in A.S. No.45/2009, appellants 3 and 4 in the said appeal have come up with the Second Appeal. A.S. No.45/2009 was preferred against the judgment and decree in O.S. No.92/2005 of the II Additional Subordinate Judge's Court, Kozhikode. Appellants were additional defendants 6 and 7 in the said suit. The suit is one for partition filed by the 3 rd respondent herein, who is presently no more, as plaintiff. The genealogy is plaint A schedule, which shows that late Madhavi Amma had three children namely, Nanikkutty Amma, Ramunni Menon and Kunhi Sankara Menon. Nanikkutty Amma died in the year 1994, leaving the plaintiff as her sole legal heir. Ramunni Menon died on 28.03.2001 leaving the 1 st defendant, 2 nd defendant, 3 rd defendant, 4 th defendant and 5 th defendant as his legal heirs. Kunhi Sankara Menon died unmarried and issue less. According to the plaintiff, plaint B schedule property is one of the items of properties devolved on the thavazhi by Madhavi Amma, in which the mother of the plaintiff Nanikkutty Amma was also one of the members, through Ext.A19 partition deed of the year 1916. The plaintiff claims that Kunhi Sankara Menon had executed a will bequeathing his share over the properties devolved on him to the plaintiff, thereby the plaintiff is entitled to 2/3 shares over the plaint B schedule property.

(2.) The contesting defendants were the additional defendants 6 and 7 only, who are the present appellants. They propounded Ext.B2 will executed in their favour by Ramunni Menon on 25.11.1989. They claimed that as per Ext.B2 Will, Ramunni Menon had bequeathed the properties obtained by him through Ext.B1 partition deed of the year 1913 and, therefore, the plaint B schedule property can only be treated as properties of Ramunni Menon over which the bequest was created in favour of the appellants.

(3.) On the side of the plaintiff, PW1 was examined and Exts.A1 to A19 were marked. On the side of the appellants, DW1 was examined and Exts.B1 to B5 were marked. The trial court decreed the suit by passing a preliminary decree declaring the 2/3 shares of the plaintiff over plaint B and C schedule properties. Plaint C schedule properties are movables. Aggrieved by the said judgment and decree, the present appellants, along with defendants 2 and 3 as appellants, preferred A.S. No.45/2009. The lower appellate court found that no Will was propounded by the plaintiff even though he claimed the share of Kunhi Sankara Menon also on the basis of a Will allegedly executed by Kunhi Sankara Menon. The lower appellate court modified the preliminary judgment and decree passed by the trial court and declared the share to which the plaintiff is entitled as ½ over the plaint B schedule property. The partition sought for, over plaint C schedule items has been denied.