JOHNSON Vs. ANNIE

JUDGEMENT

(1.) The appellants are defendants 1 to 3 in O.S.No. 663/2008 on the files of Principal Sub Judge, Irinjalakuda and being aggrieved by the preliminary decree for partition passed on 30.10.2010 in favour of plaintiffs who are the respondents herein, this appeal is preferred before this Court. The main challenge advanced by appellants opposing partition claimed by the respondents was that the suit items which originally belonged to Kochouseph were not partible in view of alleged execution of Ext-B1 Will dated 05.12.2003 being in their names. The appellants are the wife and two sons of the deceased Kochouseph. The plaintiffs/respondents are the two daughters of the deceased.

(2.) Sri. Kochouseph, the predecessor of parties died on 29.05.2004 at the age of 81. There is no dispute that if Kochouseph died intestate the appellants and respondents would succeed to him under the provisions of the Indian Succession Act 1925 (hereinafter referred to as 'the Act'). The respondents/plaintiffs demanded partition of the property after the death of Kochouseph, alleging that joint possession of the property caused inconvenience to their enjoyment. Appellants resisted the demand claiming under Ext.B1 Will and according to the respondents, on coming to know of the Will from the mouth of the appellants, they made enquiry and found that it was not a genuine document. Therefore, respondents filed the suit claiming 4/12th share as co-owners of suit items contending that Ext.B1 was cooked up.

(3.) Ext.B1 Will revealed that there was another Will marked as Ext.B5 formerly executed and registered by the testator on 29.12.1990 in Sub-Registry, Mala, bequeathing suit items exclusively in favour of appellants. This Will was cancelled and with slight modifications, Ext.B1 was executed.