SHYLAJA Vs. GEETHA (MENTALLY CHALLENGED)

JUDGEMENT

(1.) Appeal at the instance of the defendants in O.S.No.304 of 2003 on the file of the Court of Additional Sub Judge, Palakkad, aggrieved by the order of remand passed by the Fifth Additional District Judge, Palakkad in A.S.No.902 of 2009. Contesting respondents are the plaintiffs. The suit is one for partition and separate possession. Plaint A schedule properties originally belonged to deceased Krishnankutty Tharakan. It is the allegation in the plaint that on the death of Krishnankutty Tharakan, his wife Meenakshy Tharakathyar acquired life estate and their son Chakrapani got absolute right over the properties by virtue of a Will. Chakrapani died as a bachelor on 28.10.2001. According to the plaintiffs, the properties belonged to Chakrapani were inherited by his mother Meenakshy Tharakathyar. Meenakshy Tharakathyar expired on 16.4.2003. Plaintiffs and defendants are the legal heirs of deceased Meenakshy Tharakathyar. On knowing that the defendants had executed an assignment deed in respect of plaint A schedule properties to defeat the interest of the plaintiffs, the suit for partition has been filed.

(2.) Appellants/defendants opposed the suit contending that Krishnankutty Tharakan and Meenakshy Tharakathyar executed a Will on 7.9.1977 and registered it in the Sub Registrar's Office, Kollangode. Fact that Chakrapani was named in the Will as legatee is admitted. Further fact that Chakrapani died as a bachelor is also admitted. According to them, the Will did not take effect. Meenakshy Tharakathyar assigned plaint A schedule properties to defendants 1 and 2 as per a registered deed in the year 2001 and the 2 nd defendant released her right over plaint A schedule properties to 1st the defendant by virtue of another registered Hence, the 1st defendant is the absolute owner document. in possession of the properties.

(3.) The trial court, after considering the matter, decreed the suit. The defendants preferred A.S.No.402 of 2009 before the lower appellate court. During the pendency of the appeal, the plaintiffs produced the propounded Will executed by Krishnankutty Tharakan and Meenakshy Tharakathyar as an additional document by invoking Order 41 Rule 27 CPC. The court below found that proof of Will in accordance with the provisions of the Evidence Act was essential for a proper adjudication of the dispute. Hence, the case was remanded to the trial court with certain directions.