APPUKUTTAN Vs. M B DEVAKI

JUDGEMENT

(1.) Challenging the concurrent findings entered by the Munsiff's Court, Palakkad in O.S.No.22 of 1998, followed by those of the I Additional District Court, Palakkad in A.S.No.141 of 2002, the defendant in the suit has come up with this second appeal.

(2.) The suit is one for partition and separate possession of the ½ share of the plaintiff over the plaint schedule property. According to the plaintiff, the plaint schedule property is devolved on her father Balan through Exhibit-A1 Kanam sale deed. The plaintiff is the daughter of Balan in his first marriage with one Vellachi. Thereafter, Balan divorced Vellachi and married a woman named Ammalu, in whom the defendant was born. After the death of Ammalu, Balan married another woman named Vellachi. Balan died intestate in the year 1979. Subsequently, his third wife died in the year 1997. There is no child born in the wedlock of Balan and his third wife Vellachi. Therefore, the plaintiff and the defendant are the only legal heirs of Balan.

(3.) The defendant initially filed a written statement propounding Exhibit-B5 Will allegedly executed by Balan on 09.03.1978. According to the defendant, through Exhibit-B5, Balan bequeathed the plaint schedule property to the defendant by reserving the life interest of his third wife over the property. Alternatively, it was contended that even otherwise the defendant has been in exclusive possession and engagement of the property openly and continuously to the total exclusion of the plaintiff from 1979 onwards and therefore, he has prescribed title over the property through adverse possession and limitation.