BABURAJAN Vs. PARUKUTTY

JUDGEMENT

(1.) The plaintiff is the appellant. He filed a suit for partition of the plaint schedule property on the basis that his father Kuttappu died intestate. Defendants 5 and 6 propounded a will and contended that the testator had bequeathed the properties to them. The Courts below upheld the will and consequently found that the plaintiff was not entitled to a partition. The suit was hence dismissed. The plaintiff has come up with this Second Appeal. The substantial questions of law so formulated are whether it would be held that the execution of the will had been properly proved in terms of S.68 of the Indian Evidence Act, whether this was not a case where the will was not revoked by the testator and whether the properties that are the subject matter of the suit are not joint family properties over which, the plaintiff has a share by birth. I may say that the last aspect was based on a plea which the plaintiff had that the plaint schedule properties were acquired by the consideration obtained by sale of an item of joint family property and the plaintiff as a son, had a right over the property, a case which was found against by the courts below.

(2.) The plaintiff and defendants 2 to 7 are the children of Kuttappu and the first defendant. Kuttappu died on 29.5.1980. Just before Kuttappu died, Kuttappu and his wife filed a suit O.S. 420 of 1980 before the Munsiff's Court, Trichur for an injunction restraining the present plaintiff from entertaining the plaint A Scheduled property and some other properties. In that plaint, Kuttappu had averred that he had executed a will which is the one now been propounded. In that suit, Kuttappu and the first defendant obtained an interim injunction. The present plaintiff challenged that order of injunction in C.M.A. 43 of 1980 before the District Court. Arguments were heard on the Civil Miscellaneous Appeal. Summer vacation for the courts intervened before the order was pronounced. According to the plaintiff, there was a mediation in the dispute between the son and the father, in presence of the two uncles of the plaintiff, PWs. 2 and 3 and the brother of Kuttappu one Ayyappu examined as PW 5. The plaintiff's case is that Kuttappu entrusted the disputed will to PW 5 and told him that he intended to cancel the will and intended to give the property to all his children and as a preliminary step, the will was being entrusted to PW 5. The case of the plaintiff is that before he could actually cancel the will and divide the property by executing a deed of partition Kuttappu died. Even then, according to the plaintiff, the will does not survive and he is entitled to a share in the property on the basis that Kuttappu died intestate. So he filed the present suit for partition.

(3.) The plaintiff cited the paternal uncle PW 5 to produce the will entrusted to him by Kuttappu. The will was produced alongwith a statement said to have been signed by PW 5. That statement was marked as Ext. X1. The will was marked as Ext. X3. PW 5, in his evidence denied that the will had been entrusted to him by Kuttappu, after expressing the intention to cancel the same and divide the properties among his children. The statement in Ext. X1 purporting to be that of his to the effect that the will was entrusted to him by Kuttappu produced in the court, was not one really made by him and that he had only signed a blank paper and had given it to the plaintiff. The plaintiff himself was in possession of the will and had produced the same in the court as if it were produced by PW 5. PW 5 thus denied the case of the plaintiff that Kuttappu had told him that he intended to cancel the will and intended to divide the properties among all his children. PW 2 and PW 3, the uncles of the plaintiff and the contesting defendants, attempted to support the case of the plaintiff about the change of mind on the part of Kuttappu regarding the disposition of the property. To prove the will, the propounders of the will examined one of the attestors as DW3 and scribe as DW2. DW3 spoke to the due execution and attestation of the will. DW2 the scribe deposed to the fact that instructions for the preparation of the will were given to him by Kuttappu himself. The aspects of the attestation, registration of the will and the instruction for the will being given by Ruttappu, were not seriously challenged in cross examination of DWs. 2 and 3. On the basis of the materials on record, the Trial Court held that the will Ext. X3 was duly proved to be the last will and testament of Kuttappu. The contention of the plaintiff that Kuttappu intended to revoke the will and the expression of an unequivocal intention to revoke itself would operate as a revocation of the will, was negatived by the Trial Court. The Trial Court also could not find on the evidence that Kuttappu had expressed an unequivocal intention to revoke the will and in the absence of anything tangible done towards revocation, the plea of revocation cannot be accepted. Thus, the will was found and consequent on the finding that the property was not a joint family property, the will was upheld. The plea that the property was a joint family property will be dealt with by me in the later part of this judgment.