M. ABDUL HASAN Vs. A. MAIMOONAMAL

JUDGEMENT

(1.) The plaintiff in O.S.No.46 of 1990 on the file of the Additional District Judge, Pondicherry at Karaikal is the appellant. He filed the suit for partition of his 2/6th share in "A" to "D" schedule properties and the suit was partly decreed and preliminary decree was passed declaring 2/6th share in the Schedule "B" to "D" in favour of the plaintiff and in respect of "A" schedule property, the suit claim was rejected and aggrieved by the same, this appeal is filed.

(2.) The case of the plaintiff is as follows:-

(3.) The first defendant filed a statement admitting the relationship between the parties and also the gift of a portion of the "A" schedule house by the father on the eve of her marriage. She denied the allegation that the father died intestate and according to her, their father executed last Will on 17.3.1983 which was also registered and in the said Will, he bequeathed 3/4th share in the "A" schedule property in favour of the plaintiff, defendants 1, 2, 9 and the wife of the fourth defendant, namely, the predeceased daughter, Jameela Ummal. Various portions were bequeathed for various defendants in the Will and the Will came into effect on the date of death of Mohamed Zackaria on 6.4.1983 and the Will also acted upon and mutation of name in favour of all the beneficiaries under the Will was effected after giving notice to all the parties concerned. The first defendant also gifted her property bequeathed to her under the Will dated 17.3.1983 in favour of her younger daughter, 7th defendant under a registered deed of gift dated 4.10.1989. The 9th defendant also gifted the property bequeathed to him in favour of the 7th defendant under a gift deed dated 4.10.1989. The second defendant gifted the property bequeathed to her in favour of the 8th defendant under a registered gift deed dated 21.10.1989. All these gifts were acted upon and donees were enjoying the property and the plaintiff was also aware of these gift deeds. Therefore, it is not open to the plaintiff to contend now that the Will was not valid. As the entire "A" schedule property was disposed of by the father, "A" schedule property is not available for partition. It is also stated that the father was taken care of by the defendants 1 and 9 and the plaintiff's wife never took care of the parents-in-law and she also denied the allegation that the father was not having his faculties immediately before his death and she also denied the allegation that the father was moody and not responsive and indifferent to the treatment given for ailment during his last days. She asserted that during the time of execution of the Will, the father was fully conscious and executed the Will knowing about the implications of the Will and he was in a sound disposing state of mind and he was suffering from paralysis on the right side and therefore, he was not able to put his signature and his thumb impression was obtained in the Will and the Will cannot be termed as marz-ul-maut as the father was not in contemplation of death and the Will was validly executed in the presence of the witnesses and the plaintiff cannot challenge the Will after 7 years of its execution. The plaintiff also accepted the Will and took possession of the portion given to him under the Will and other portions were taken by the other sharers. She also stated that in respect of "B" "C" and "D" schedule property, she has no objection for the decree being passed as prayed for by the plaintiff.