AI Structured Summary
Not yet generated for this judgment
Judgment
P.R. Raman, J.—Plaintiff is the appellant herein. The suit is for partition. As per the averments in the plaint, the plaint schedule property belonged to deceased Hanuman, father of the plaintiff, 1st defendant and deceased Kuttappan who was the husband of the 2nd defendant and father of defendants 3 to 10. After the death of Hanuman, the property was partitioned among the legal heirs, as per document No. 1728/83. As per this document, the 1st defendant and Lakshmi, the wife of Hanuman, were to be a single thavazhy. A schedule property was set apart to their share. Lakshmi, the mother of the plaintiff and the 1st defendant, died without executing any Will. After the death of Lakshmi, the plaintiff is entitled to get 1/3 share of the 1/2 share of Lakshmi in the plaint schedule property. The 1st defendant is now in possession of the property, which possession is alleged to be on behalf of all the sharers. The plaintiff''s claim for partition was refused. Hence the suit.
The defendants 2 to 10 remained ex parte. The 1st defendant alone contested the matter. In the written statement filed by the 1st defendant, it is contended that Lakshmi had executed a Will on 14-6-86 bequeathing her property to the 1st defendant. The plaint schedule property is therefore not partible. She was in possession of the property on her own right. It was the 1st defendant who looked after Lakshmi, had spent huge amount for the treatment of Lakshmi and also for her funeral expenses. She also claimed to have renovated the house in the plaint schedule property. The trial court dismissed the suit. On appeal the judgment and decree of the trial court was confirmed and the appeal was dismissed. It is against the judgment and decree of the Appellate Court that the Second Appeal has been filed.
The main contention advanced by the learned counsel for the appellant is that the Will has not been properly proved. DWs. 2 and 3, who are the attesting witnesses of the Will, stated that Lakshmi putting her signature in their presence. It is thereafter that the attesting witnesses put their signatures. DWS. 2 and 3 stated that Lakshmi called them to her house for the purpose of attesting the Will. DW-2 is an Agriculturist and DW-3 is a businessman. They have stated that they know Lakshmi even before attesting the Will. DW-2 is residing 1/2 km. away from Lakshmi''s house and he had been visited the house of Lakshmi in connection with Kuri business.
The courts below on an appreciation of the evidence of DWs. 2 and 3, came to the conclusion that the execution of the Will has been properly proved. It is also an evidence that the Will was executed and Lakshmi died only few years thereafter. There is no dispute that Lakshmi was also residing with 1st defendant.
Another circumstances relied on by the appellant is that the Will is not a registered one. Since the Will is not a registerable document, no suspicion can be raised merely because the Will is not registered. the next submission is that the Scribe of the Will is not examined or identified. The attesting witnesses have stated that at the time when the Will was executed, nobodyelse was present. The fact that the Scribe is not identified cannot show that the Will is not properly proved.
The Appellant Court has therefore rightly held that this cannot be taken on suspicious circumstances. It is also contended by the learned counsel for the appellant that in the reply notice for petition the defendants have not given the details of the Will. But, admittedly they have referred to the Will in the reply notice.
Both the courts below on appreciating the evidence, came to the conclusion that the Will is properly proved. There is no circumstances warranting any interference in the Second Appeal. No substantial question of law arise for consideration.
The Second Appeal is accordingly dismissal.