Kunjipennu and Others vs Chandrika and Others

Hon''ble Kumari. Justice A. Lekshmikutty

The defendants in O.S.No. 278/1987 on the file of the Munsiff Court, Muvattupuzha, who were the appellants in A.S.No. 168/1990 of the Sub Court, Muvattupuzha are the appellants herein. The plaintiffs filed the suit for partition and separate possession of 1 acre and 6 cents of property comprised in Survey No. 535/5/ 2 and 482/1 of Enanalloor Village. As per the plaintiffs, the plaint schedule property belonged to one Itta, the husband of the first appellant, who dies intestate in the year 1975. The appellants and the respondents are legal heirs of deceased Itta and they are co-owners of the property. The 2nd appellant filed O.S.No. 326/1987 against respondents 1 and 2 for prohibitory injunction and they are entitled to 3/7 share in the suit property. So the suit is filed for partition and separate possession with mesne profits. The appellants contended that the plaintiffs are not entitled to get partition of the plaint schedule property. They are the daughters of Itta, who were given away in marriage in the kudivaippu form after giving ornaments and Sthreedhanam and they have no share in the property. On 11-7-1974, deceased Itta executed a will bequeathing the plaint schedule property to the 2nd appellant, who is in exclusive possession and enjoyment of the property with knowledge of the respondents ousting them and the right if any of the respondents is barred by adverse possession and limitation. The trial court negatived the contention of the appellants and found that the property is partible and accordingly a preliminary decree for partition was passed. The appellate Court confirmed the decree and judgment of the trial court and dismissed the appeal. Against the said judgment and decree, this Second appeal is filed. The questions formulated in this appeal are:

i) Whether the will alleged to be executed by Itta is properly proved?

(ii) If there is no joint possession will it not amount to ouster of possession of the parties, who are co-owners in the property?

Points:

There is no dispute with regard to the fact that the plaint schedule property originally belonged to one Itta, husband of the first defendant and father of defendants 2 and 3 and plaintiffs 3 and 4. Plaintiffs 1 and 2 are the children of Itta''s deceased son Krishnankutty and plaintiffs 5 to 7 are the children of Itta''s deceased daughter Narayani. As per the plaintiff, Itta died intestate and after his death, the property devolved on the plaintiffs and the defendants. While so the 2nd defendant filed O.S.No. 326/1987 for a prohibitory injunction restraining the plaintiffs from trespassing into the plaint schedule property alleging that the plaint schedule property belongs to him by virtue of a will executed by Itta. The genuineness of the will is challenged by the plaintiffs. The contention of the defendants is that the daughters of Itta were given in marriage in kudivaippu from giving Sthreedhanam and ornaments and therefore, they are not entitled to any share over the plaint schedule property: The further contention is that during the lifetime of Itta, he had executed Ext.A1 will bequeathing the entire property to 2nd defendant. So he has become the sole legatee under the will and the plaintiffs are not entitled to get any share over the property..

Both parties adduced evidence. Plaintiffs 2 and 4 were examined as PWs. 1 and 2 And the second defendant was examined as DW1. One of the attestors to the will was examined as DW2 and the first defendant was examined as DW 1. During the pendency of the appeal, the first appellant died. The evidence adduced in this case shows that plaintiffs 1 and 2 are entitled to get 1/7 shares each and plaintiffs 5 to 7 jointly are also entitled to l/7the share. So according to the plaintiffs, after the death of Itta, they became co-owners of the property and they are entitled to 3/7 shares over the plaint schedule property. If the will is not genuine, undisputedly the plaintiffs and defendants are co-owners of the property. Even though the defendants contended that the daughters of Itta were given in marriage in kudivaippu form, the evidence adduced by the defendants would not prove the same. Itta died in 1975 after coming into force of the Hindu Succession Act. So plaintiffs are co-owners of the property.

Another contention raised by the defendants is that as per Ext.B 1 will executed by Itta the entire property bequeathed to the 2nd appellant subject to the life enjoyment of the first defendant, the wife of Itta, who is the mother of 2nd defendant and plaintiffs 2 and 3. Since the genuineness of the will is disputed by the plaintiffs, the burden is on the defendants to prove the due execution of the will. As per Section 63 of the Indian Succession Act.

a) The testator shall sign or shall affix his marks to the will, or it shall be signed by some other person in his presence and by his direction;

b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will;

c) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.

In the Chief Examination itself, DW2 has stated that he did not see the putting of signature by the testator in the will. But he has stated that he has put his signature after the signature of the testator. So the evidence of DW2 would not prove due execution of the will. As per Section 63 of the Indian Succession Act, the testator shall sign the will in the presence of the witnesses and it shall also appear that the testator intended to give effect to the writing as a will. The witnesses would have seen the testator sign or affix his mark to the will and each of the witnesses shall sign the will in the presence of the testator. The ingredients of Section 63 of the Indian Succession Act is not proved in this case. It is true that DW3, the wife of Itta, who is the mother of 2nd defendant and plaintiffs 2 and 3 deposed that she saw her husband writing the will bequeathing the property to the 2nd defendant as per Ext.B 1. She has also sworn to the fact that she saw the witnesses putting signatures in Ext.B1. But the attesting witness did not swear the presence of PW3. The plaintiffs have a case that Kanda the other witness mentioned in Ext. B1 is the father-in-law of the 2nd defendant. DW2 admitted that he knows Kanda, who is the father in law of the 2nd defendant. It has come out in evidence that late first appellant was residing with her son, the 2nd defendant. Even though she has stated that the writing in Ext. B1 was written by her husband, it has come out in evidence that she is an illiterate person. On a perusal of the evidence shows that she is an interested witness. As per Section 68 of the Indian Evidence Act, if a document is required by law to be attested, it shall not be used as evidence until one attesting witnesses atleast has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence. In the present case, one of the attesting witnesses was examined as DW2. He has not sworn that he has seen the testator putting his signature in the document and the testator saw the putting of signature by himself and the other witnesses, it is to be found that the ingredients in Section 68 of the Indian Evidence Act also is not proved. It is admitted by DW2 that he did not read over the contents of the documents. He is a friend and neighbour of the 2nd defendant. According to DW2, he has informed the execution of the will after 10 or 20 days of the execution whereas the evidence of DW1 shows that he came to know about the will only after the death of his father. If the version of DW1 is accepted, the version of DW2 cannot be accepted. In the absence of any reliable evidence, it is to be found that the execution of the will is not properly proved. There is no material before court to prove the admitted signature and handwriting of the testator. Since the execution of Ext. B1 is not properly proved, the plaintiffs are entitled to get 3/ 7th share as claimed in the plaint. Another contention raised by the defendants is that even if the plaintiffs have got any right over the property, it was lost by adverse possession and limitation. At the time of examination, PW3 admitted that she never enjoyed the property after the death of her father. The possession of a co-owner is to be treated as the possession of the other co-owners also. As between co-sharers there must be evidence of open assertion of hostile title, coupled with exclusive possession and enjoyment by one of them to the knowledge of the other so as to constitute ouster. One co-heir in possession cannot render his possession adversed to the other co-heir in possession merely by any secret hostile animus on his own part in derogation of the other co-heirs title. The mere non-participation in the rent and profits of the land of a co-sharer does not amount to an ouster so as to give title by adverse possession of the other co-sharer in possession. So the contention of the 2nd defendant that he has perfected his title by adverse possession is found against.

On a careful examination of the entire evidence, I find that the court below has rightly passed a preliminary decree of partition. The questions of law formulated are answered accordingly. The Appeal is dismissed.