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 Kattappu died intestate. Defendants 5 and 6 propounded a will and contended that the tester 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 could be held that the execution of the will had been properly proved in terms of Sec. 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 the 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 entering the plaint A schedule property and some other properties. In that plaint, Kuttappau had averred that he had executed a will which is the one now been propounded. In that suit, Kattappu and the first defendant obtained an interim injunction. The present plaintiff challenged that order of injunction in C.M.A. No. 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 the presence of two uncles of the plaintiff, PWs. 2 and 3 and the brother of Kuttappu one Ayyappu examined as PW5. 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 share in the property on the basis that Kuttappu died intestate. So he filed the present suit for partition.

(3.) THE lower appellate court, on a re-appraisal of the evidence of PW1, PWs.2 and 3 and PW.5 and that of DWs. 2 and 3 came to the conclusion that the propounders of the will have duly proved the will Ext.X3 and in view of the execution of the will by Kuttappu, plaintiff was not entitled to any share. The appellate court also held that there was no evidence of the revocation of the will and there was also no circumstances made out, which made it not possible for the court to accept the will as the last will and testament of Kuttappu. Thus upholding the will, the claim of the plaintiff for partition was rejected. The lower appellate court noticed the fact that there was no serious argument before it that the property was joint family property and that the plaintiff was entitled to a share therein, by virtue of his birth, as a member of a joint Hindu family, since it appeared that the position that the law prevalent in that part of the State to the effect that the son was entitled to any right by birth was not questioned before that court and was accepted by counsel for the plaintiff. The question is whether circumstances are made out to interfere with the conclusions arrived at by the lower appellate court.