JAYALAKSHMI Vs. PADMINIDEVI

JUDGEMENT

(1.) Challenging Ext.P11 order passed by the IInd Additional Sub Judge, Thrissur in E.A.No.894 of 2015 and E.A.No.684 of 2016 in E.P.No.369 of 2013 in O.S.No.655 of 1991, the 2nd defendant has come up before this Court. The decree holder/respondent before the court below is the respondent herein. Parties are sisters. They, along with their father Madhavan Nair and husband of the petitioner, were defendants in a suit for partition. The plaintiffs in the suit contended that Madhavan Nair had only ? ..?th right over the property. Madhavan Nair had set up ownership in respect of the entire property. To establish that contention he produced Ext.B1 settlement deed executed by him in favour of the petitioner and respondent. According to him, by virtue of that document, he had settled his entire rights over the property in favour of his two daughters, namely, the petitioner and the respondent. Considering the contentions raised and established by the parties, the trial court, as per Ext.P2 judgment, passed a preliminary decree. In that judgment, the trial court took note of the fact that the property had been settled by the 1st defendant (Madhavan Nair) in favour of defendants 2 and 4 (petitioner and respondent) reserving a life interest in favour of him. The trial court considered the effect of the document and ultimately it found that Madhavan Nair had only ? ..? right over the property. A preliminary decree was passed. Ext.P2 judgment was challenged before the lower appellate court and later, in a second appeal before this Court. Ext.P1 is the judgment passed by this Court in S.A.No.1022 of 2001. A learned single Judge of this Court observed thus:

(2.) Pending the first appeal, the respondent put forward an exclusive claim over the property belonged to Madhavan Nair by contending that he had executed a Will in her favour bequeathing all his interests over the property. This contention was raised for the first time while the matter was pending in A.S.No.136 of 1997 before the District Court, Thrissur. I.A. No.2277 of 1998 was filed in the appeal claiming a right by virtue of the Will executed by Madhavan Nair. The order passed by the lower appellate court would show that the executing witnesses and the scribe were examined to prove the Will. In this proceedings, the petitioner had participated and contested. Ultimately, the lower appellate court found that the Will propounded by the respondent was properly proved and it was established that deceased Madhavan Nair, in a sound disposing state of mind had executed the Will. However, the question whether Madhavan Nair, after executing the settlement deed in favour of the petitioner and respondent, had any right to create a bequest in respect of the property was considered.

(3.) Interestingly, genuineness of the Will or in other words legal effect of the Will was raised in the second appeal. Ext.P1 judgment does show any such contention raised by the parties.