C.K. Yuvaraja Panicker v. C.K. Sujatha Panickathy and others

R.F.A.600/2007 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **TUESDAY, THE 19TH DAY OF MAY 2020 / 29TH VAISAKHA, 1942** ## **RFA.No.600 OF 2007** **AGAINST THE JUDGMENT IN OS 131/1999 DATED 05-07-2007 OF PRINCIPAL SUB COURT,ALAPPUZHA** ## **APPELLANT/DEFENDANT NO.1:** **C.K.YUVARAJA PANICKER SON OF RAGHAVA PANICKER, VRINDAVANAM, ASRAMAM WARD, KOLLAM MUNICIPALITY, KOLLAM.** **BY ADVS. SRI.S.V.BALAKRISHNA IYER (SR.) SRI.M.P.RAMNATH SRI.P.RAJESH (KOTTAKKAL)** ## **RESPONDENTS/1ST PLAINTIFF & DEFENDANTS 2 TO 4:** **1 C.K.SUJATHA PANICKATHY D/O. RATNAMMA PANICKATHY, RESIDING AT, VRINDAVANAM, ASRAMAM WARD, KOLLAM MUNICIPALITY, KOLLAM FROM VADAYAKATTIL, CHETTIKAD MURI, PATHIRAPALLY VILLAGE, ALAPPUZHA.** **2 C.K. RAJAGOPALA PANICKER SON OF RAGHAVA PANICKER, VAVARUPARAMBIL,, KANJIRAMCHIRA WARD, -DO- MURI, ARYAD THEKKU, VILLAGE, ALAPPUZHA.** **3 C.K. RAJAMAHESH PANICKER(DIED) SON OF RAGHAVA PANICKER, VRINDAVANATHIL,, SANATHANAM WARD, THEKKEN ARYAD MURI, MULLACKAL VILLAGE, ALAPPUZHA.** **(DIED) LRS IMPLEADED-ADDL. R8 & R9** **IT IS RECORDED THAT 'APPELLANT AND RESPONDENTS 1 & 2, IN THE APPEAL ARE THE LRS OF THE DECEASED R3 AS PER ORDER DT. 21.08.13 IN I.A. 1699/13.** R.F.A.600/2007 2 **ORDER DATED 21.8.2013 RECORDING THE LRS OF DECEASED 3RD RESPONDENT IS RECALLED VIDE ORDER DATED 25.8.17 IN I.A. 1656/17.** - **4 C.K. INDIRA PANICKATHY(DIED) D/O. RATNAMMA PANICKATHY,DWARAKAYIL CHETTIKAD MURI, PATHIRAPALLY VILLAGE, ALAPPUZHA. (DIED) LRS IMPLEADED – ADDL. R5 TO R7** - **ADDL. V.MOHANDAS (DIED)** - **R5 DWARAKAYIL,CHETTIKADU MURI,PATHIRAPPALLY P.O. ALAPPUZHA** - **ADDL. M.SUSMITHA** - **R6 D/O LATE C.K.INDIRA PANICKATHY,DWARAKAYIL,CHETTIKADU MURI,PATHIRAPPALLY P.O. ALAPPUZHA NOW RESIDING AT C/O. M.SATHEESAN, KARUMALIL,SUDHAMANDIRAM,KANNIMMEL NAGAR,THANGASSERY P.O.KOLLAM** - **ADDL. M.RADHA** - **R7 D/O LATE C.K.INDIRA PANICKATHY,DWARAKAYIL,CHETTIKADU MURI, PATHIRAPPALLY P.O. ALAPPUZHA.** **ADDL. R5 TO R7 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF THE DECEASED 4TH RESPONDENT AS PER ORDER DATED 20.8.2008 IN I.A.1201/08.** **ADDL. R6 & R7, WHO ARE ALRADY IN THE PARTY ARRAY ARE RECORDED AS THE LEGAL REPRESENTATIVES OF THE DECEASED 5TH RESPONDENT AS PER ORDER DT. 20.8.2008 IN I.A. 2586/2008.** - **ADDL. JESSY** - **R8 FATHER'S NAME NOT KNOWN ,AGED 60 YEARS, RESIDING AT VRINDAVANAM, SANATHANAM WARD,SOUTH ARYAD MURI,MULLACKAL VILLAGE,ALAPPUZHA,PIN 688542.** - **ADDL. TONY** - **R9 S/O JESSY AGED 32 YEARS, RESIDING AT VRINDAVANAM, SANATHANAM WARD,SOUTH ARYAD MURI,MULLACKAL VILLAGE,ALAPPUZHA,PIN 688542.** **ADDL. R8 & R9 ARE IMPLEADED AS THE LRS OF 3RD RESPONDENT AS PER ORDER DATED 22.1.2018 IN I.A. NO. 1739/2017.** R.F.A.600/2007 3 **R1 BY ADV. SRI.MILLU DANDAPANI BY ADV. SMT. SUMATHY DANDAPANI (SR.) R2 BY ADV. SRI.M.D.SASIKUMARAN R2 BY ADV. SRI.K.S.HARIHARAPUTHRAN ADDL.R5-6 BY ADV. SRI.K.C.SUDHEER ADDL.R7 BY ADV. SRI.N.DHARMADAN (SR.) ADDL.R7 BY ADV. SRI.S.SATHI KUMAR ADDL.R8-9 BY ADV. SRI.T.SETHUMADHAVAN (SR.) ADDL.R8-9 BY ADV. SMT.DEEPA NARAYANAN ADDL.R8-9 BY ADV. SMT.PREETHI. P.V.** **THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 21-11-2019, THE COURT ON 19-05-2020 DELIVERED THE FOLLOWING:** R.F.A.600/2007 4 ## **JUDGMENT** ## **Dated this the 19th day of May 2020** The 1[st] defendant in O.S. No. 131 of 1999 on the file of the Subordinate Court, Alappuzha is the appellant. A suit filed for partition of the plaint schedule properties as O.S. No. 131 of 1999 between the siblings of a family was considered by the court below and a preliminary decree was passed on 30.7.2001 allotting 1/4[th] share each to the plaintiffs 1 and 2 and 1/4[th] share each to defendants 1 and 2. The defendant Nos.3 and 4 were given shares earlier by their parents and so no share was allotted in the preliminary decree which was passed on 30.7.2001 .During the pendency of the appeal, they expired. None of the parties challenged the preliminary decree . The final Judgment dated 5.7.2007 is under challenge at the instance of the 1[st] defendant. 2. Certain facts are not in dispute. The plaintiffs and the defendants are the children of one Raghava Panicker and Retnamma Panickathi. Their mother, Retnamma Panickathi died in the year 1995 and Raghava Panicker their father in the year 1996. Indira Panickathi, the 4[th] defendant in the suit, was given share as per document No. 721/1973 by her parents and Rajamahesh Panicker, the 3[rd] defendant, was also given share in the suit filed by him as O.S. No. 37 of 1988. So, they were excluded in allotting shares in the partition suit and 1/4[th] share each was given to the plaintiffs and 1/4 share each to the defendants as mentioned above. Item No.1 is R.F.A.600/2007 5 situated in Kollam District and item Nos. 2 to 9 are in Alappuzha District. After the passing of the preliminary decree, the plaintiffs filed I.A. No. 1631 of 2001 for passing of final decree. The respondents therein are defendants 1 and 2. The 2[nd] defendant filed I.A. No. 799 of 2002 for passing of the final decree wherein the counter petitioners are the plaintiffs and the 1[st] defendant. The 1[st] defendant also filed a separate application for passing of the final decree as I.A. No. 1787 of 2001 wherein the plaintiffs and the defendants 2 to 4 are the counter petitioners. Item No.1 is having an extent of 12.167 cents and a residential building is situated therein. Item No.2 is a building with an extent of 57 cents. Admittedly, the 1[st] defendant is residing in the house situated in the said property and during the pendency of the final decree application, the 2[nd] plaintiff expired. He was not having any issues and the 1[st] plaintiff was recorded as the sole legal heir of the 2[nd] plaintiff, who expired, on the basis of a will deed relied on by the 1[st] plaintiff. The applications filed by the 1[st] defendant, the 1[st] plaintiff and the 2[nd] defendant for passing of the final decree were considered together and the final decree was passed in the following terms: - “(a) Partition of the plaint scheduled items by metes and bounds is hereby allowed. (b) The plot No. 2 in the Ext.C4, the plots as per the Ext.C4(b) and C4(c), the plot No. 3 in the Ext.C4(d), the plot No. 1 in the Ext.C4(f) are allotted to the share of the first plaintiff as her due share over the plaint scheduled items. (c) The plot Nos. 1 and 2 in the Ext.C4(a), the plot No.2 in the Ext.C4(b), the plot No.2 in the Ext.C4(c) and the plot No.2 in the Ext.C4(f) are allotted to the share of the first defendant as his due share in the plaint scheduled items. (d) The plot No.1 in the Ext.C4, the plot No.3 in the Ext.C4(a) and the plot No.1 in the Ext.C4(d) are allotted to the share of the second defendant as his due share in the plaint schedule items. - (e) As per the request of the first plaintiff, an extent of 2.750 cents in the plaint R.F.A.600/2007 6 scheduled item No.9 property (comprised in Sy. No.279/7 of the Pathirappally Village) is allotted to the share of the 4[th] defendant, and it is made clear that the other parties to the suit (including the 1[st] plaintiff) will not have any kind of right over the said extent of 2.750 cents. - (f) Joint right, if any, of the parties over the entire plaint schedule properties is hereby extinguished. - (g) The parties are directed to produce the value of non-judicial stamp paper for engrossing the decree. (h) No order as to costs. - (i) The Exts. C4 to C4(f) will be appended to the final decree.” 3. Heard Adv. M.P. Ramnath, the learned counsel for the appellant and Adv. Sumathy Dandapani, the learned Senior Counsel for the respondents. 4. Admittedly, as per the preliminary decree dated 30.7.2001, the plaintiffs 1 and 2 and the defendants 1 and 2 are entitled for 1/4[th] share each. As referred above the 3[rd] defendant had obtained share in the partition suit filed as O.S. No. 37 of 1988 and the 4[th] defendant was given his share as per document No. 721/1973, and therefore no separate shares were allotted to the defendants 3 and 4. During the pendency of the final decree application, the 2[nd] plaintiff, namely, C.K. Devaraja Panicker, expired on 15.1.2007. Thereafter, the 1[st] plaintiff filed I.A. No. 357 of 2007 for an order to declare and record her as the sole legal heir of deceased 2[nd] plaintiff on the basis of a will deed executed by him on 17.4.2006. Ext.A1 is the will deed of the 2[nd] plaintiff relied on by the 1[st] plaintiff. 5. The 1[st] defendant opposed the application and challenged the will deed mainly on the ground that late Devaraja Panicker had no testamentary capacity to execute any will as he was suffering from very serious mental illness for years together and he was suffering from schizophrenia and was undergoing treatment in Nair's Hospital, Kollam and Sree Chithirathirunal R.F.A.600/2007 7 Hospital, Thiruvananthapuram. But the 1[st] plaintiff, on the other hand, examined the scribe, the attestor etc of the will to prove its execution and attestation. At the outset, it is to be noted that though the 1[st] defendant contended that Devaraja Panicker was suffering from schizophrenia and was undergoing treatment for his illness in Nair's Hospital at Kollam and at Sree Chithirathirunal Hospital, Thiruvananthapuram, did not adduce any evidence to support his contention. So, evidence regarding the alleged mental illness of Devaraja Panicker is totally lacking in this case. So also, the contention that he was not having any testamentary capacity at the time of execution of the document stands disproved in absence of cogent and convincing evidence. Therefore, the question to be looked into is whether the execution and attestation of the will is proved and whether Ext.A1 is a genuine will deed properly proved and attested by witnesses as contemplated under Section 68 of the Evidence Act and Section 63 of the Succession Act. So, law says that the propounder has to show by cogent and satisfactory evidence that will was signed by the testator in sound disposing mind in the presence of two attesting witnesses. The attesting witnesses should have seen the testator affixing his signature out of his own freewill. A perusal of the documents available on record would show that the scribe of Ext.A1 was PW2 and PW3 was one attesting witness examined at the instance the 1[st] plaintiff to prove the will. The definite case of the 1[st] plaintiff is that the 2[nd] plaintiff was suffering from Parkinson and he was having slight tremor in writing, but apart from that, he was physically and mentally healthy and sound enough at the time of execution of the will deed. According to her, he was residing along with her at Kollam in the residential house situated in R.F.A.600/2007 8 plot No.1 and she was taking care of him as he was unmarried and issueless. She is also a spinster and both of them were residing together in the house. According to her, they together had gone to Alappuzha to attend the marriage of the daughter of Indira Panickathi, the 4[th] defendant. After the marriage, they had gone to the residence of the 3[rd] defendant, who was examined as DW 1. At about 3 p.m. they reached at his residence and at that time the 2[nd] plaintiff told that he was intending to write a will deed and the same was written down by PW 2 who was present in the house along with PW 3, as instructed by him. The contents for preparing the will deed were narrated by him and PW 2 had written down the same and read over the same to him. PW 3 had put his signature in the document as an attestor and DW 1, the 3[rd] defendant, also affixed his signature in the document as attesting witness. PW2 endorsed as the scribe of the document. So, according to PW 1, Ext.A1 will deed was executed by the 2[nd] plaintiff in the presence of the attesting witnesses ie PW3 and DW 1 and thus bequeathed his share and right over the property in her favour. In order to discharge the onus to prove that the will was duly executed, she examined PW2 and PW3 before the court. 6. PW 2, the scribe has also deposed before the court that he was asked to write down the will deed by Devaraja Panicker, the testator and the testator affixed his signature in the will deed after convincing with the contents read over to him. 7. PW 3 is one of the attesting witnesses to the document. He had also deposed that the will deed was written by PW2 as stated by Devaraja Panicker and he had seen him affixing his signature in the document and R.F.A.600/2007 9 Devaraja Panicker had seen him affixing signature as an attestor to the document. He has also deposed that DW 1 had also affixed his signature as a witness to the will deed and the signature was affixed by him as well by DW 1 in the presence of Devaraja Panicker. Both of them had also deposed that Devaraja Panicker was having sound state of mind and he was well oriented and capable of doing things though he was having slight tremor to his hands because of his illness. PWs 2 and 3 had thus given evidence to the effect that Ext.A1 was executed by the testator who was having sound testamentary capacity and executed the will deed in the presence of the attesting witnesses. 8. DW 1, who is the 3[rd] defendant, had fully supported the case of the plaintiff regarding the execution and attestation of the will. He had also fully corroborated the evidence of PW 1 that the document was executed by Devaraja Panicker when he came along with PW 1 to attend the marriage of the daughter of the 4[th] defendant at Alappuzha and the document was executed at his residence in the presence of the other attestor to the document. 9. The principle which govern the execution of a will deed is settled by a catena of decisions of the Apex Court. ## To cite only a few, in **H.Venkatachala Iyengar v.** ## **B.N.Thimmajamma (AIR 1959 SC 443)** it was held that: “18. What is the true legal position in the matter of proof of wills? It is well known that the proof of wills presents a recurring topic for decision in courts and there are a large number of judicial pronouncements on the subject. The party prepounding a will or otherwise making a claim under a will is no doubt seeking prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern the proof of documents. R.F.A.600/2007 10 Sections 67 and 68 of the Evidence Act are relevant for this purpose. Under Section 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under Sections 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a court of law. Similarly, Sections 59 and 63 of the Indian Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this section indicate what is meant by the expression “a person of sound mind” in the context. Section 63 requires that the testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a will. This section also requires that the will shall be attested by two or more witnesses as prescribed. Thus the question as to whether the will set up by the prepounder is proved to be the last will of the testator has to be decided in the light of these provisions.***************” ## In **Beni Chend (since dead) now by L.Rs. v. Smt. Kamla Kunwar and others (AIR 1977 SC 63)** it was held as follows: **“** By attestation is meant the signing of a document to signify that the attestor is a witness to the execution of the document; and by Section 63(c) of the Succession Act, an attesting witness is one who signs the document in the presence of the executant after seeing the execution of the document or after receiving a personal acknowledgment from the executant as regards the execution of the document. Nigam's evidence shows that he and the other two witnesses saw the testatrix putting her thumb-mark on the will by way of execution and that they all signed the will in token of attestation in the presence of the testatrix, after she had affixed her thumb-mark on the will.” ## In **Gopal Sawaroop v. Krishna Murari Mangal and others [(2010) 14** ## **SCC 266]** it is held that: R.F.A.600/2007 11 “17. A careful analysis of the provisions of Section 63 would show that the proof of execution of a will would require the following aspects to be proved: (1) That the testator has signed or affixed his mark to the will or the will has been signed by some other person in the presence and under the direction of the testator. (2) The signature or mark of the testator or the signature of the persons signing for him is so placed has to appear that the same was intended thereby to give effect to the writing as a will. (3) That the will has been attested by two or more witnesses each one of whom has signed or affixed his mark to the will or has been seen by some other person signing the will in the presence and by the direction of the testator or has received from the testator a personal acknowledgment of the signature or mark or the signature of each other person. (4) That each of the witnesses has signed the will in the presence of the testator.” ## In the decision reported in **Madhukar D Shende** v. **Tarabail Aba Shedage** ## ((2002) 2 SCC 85) it was held as follows: “8. The requirement of proof of a will is the same as any other document excepting that the evidence tendered in proof of a will should additionally satisfy the requirement of Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872. If after considering the matters before it, that is, the facts and circumstances as emanating from the material available on record of a given case, the court either believes that the will was duly executed by the testator or considers the existence of such fact so probable that any prudent person ought under the circumstances of that particular case, to act upon the supposition that the will was duly executed by the testator, then the factum of execution of will shall be said to have been proved........ The conscience of the court has to be satisfied by the propounder of will adducing evidence so as to dispel any suspicions or unnatural circumstances attaching to a will provided that there is something unnatural or suspicious about the will. The law of evidence does not permit conjecture or suspicion having the place of legal proof nor permit them to demolish a fact otherwise proved by legal and convincing evidence. Well-founded suspicion may be a ground for closer scrutiny of evidence but suspicion alone cannot form the foundation of a judicial verdict – positive or negative. R.F.A.600/2007 12 9. It is well settled that one who propounds a will must establish the competence of the testator to make the will at the time when it was executed. The onus is discharged by the propounder adducing prima facie evidence proving the competence of the testator and execution of the will in the manner contemplated by law. The contestant opposing the will may bring material on record meeting such prima facie case in which event the onus would shift back on the propounder to satisfy the court affirmatively that the testator did know well the contents of the will and in sound disposing capacity executed the same. The factors, such as the will being a natural one or being registered or executed in such circumstances and ambiance, as would leave no room for suspicion, assume significance. If there is nothing unnatural about the transaction and the evidence adduced satisfies the requirement of proving a will, the court would not return a finding of “not proved” merely on account of certain assumed suspicion or supposition. Who are the persons propounding and supporting a will as against the person disputing the will and the pleadings of the parties would be relevant and of significance.” 10. Applying these principles to the instant case ,it could be seen that, the 1[st] defendant could not adduce any convincing and satisfactory evidence to challenge the genuineness of the will on the ground of mental incapacity of the testator or the requirements of proof of a will. He could not produce a scrap of paper to prove that the testator was not having any testamentary capacity so as to dispose of his property or there exists a suspicious circumstance to doubt the genuineness of the document. But as mentioned earlier, the 1[st] plaintiff had deposed the circumstance leading to the execution of the document by clear and satisfactory evidence before the court and there was absolutely no reason to doubt the genuineness of the will. So also, it is to be noted that though the application by the 1[st] defendant to compare the signature of the testator with some document which he had executed long back was disallowed by the court mainly for the reason that the testator was suffering from Parkinson disease at the time of R.F.A.600/2007 13 execution of the document and the finding of the court below was that there was every possibility to have a slight change to the signature of such a person as he was suffering from the said disease at the time of execution of the document. Though his application filed as I.A. No. 915 of 2007 to gather the opinion of a handwriting expert by making comparison of the signature of the testator was dismissed by the court below on 14.6.2007 by a considered order, the same was not challenged . So, in short, it could be seen that sufficient evidence was adduced by the 1[st] plaintiff to prove the genuineness of Ext.A1 will deed. The circumstances available on record also establish the fact that the document had been executed by the 2[nd] plaintiff in favour of the 1[st] plaintiff with whom he was residing. Therefore, the disposition made in the will does not appears to be unnatural and there exists no suspicious circumstances. No medical record is also available to prove that the testator was suffering from any mental illness. It is also to be noted that there is specific mention in the document that the expenses for his treatment were met by the 3[rd] defendant and the 1[st] plaintiff had undertaken to repay the same and PW 1 had also spoken to that effect. The 1[st] plaintiff who propounds the will established the competence of the testator to make the will at the time of its' execution that he was conscious and mentally fit. The court below on the basis of the evidence adduced by the parties concluded that the will deed executed by the testator which is duly attested by PW3 and DW 1 is a genuine one and there is absolutely no reason to doubt the genuineness of the same or to doubt about the state of mind of the testator at the time of its' execution. As the will in question satisfied the requirements of proof the court below rightly found that Ext.A1 R.F.A.600/2007 14 will deed is a genuine one and on that basis concluded that the 1[st] plaintiff is entitled to get the share of the 2[nd] plaintiff on his death. The document was executed as early as on 17.4.2006 and death occurred on 15.1.2007. The court below allowed the above application filed by the 1[st] plaintiff on 20.6.2000. But that order as well the order in I.A. No. 915 of 2007 were not challenged separately by the 1[st] defendant who contested the matter before the court below. After the disposal of both the I.As. the final decree applications were jointly considered and disposed of by the court below and the final judgment under challenge was passed on 5.7.2007. The grievance projected by the 1[st] defendant is absolutely unjustified. In short, the execution of the will stands proved and there is no justification to interfere. 11. A commission was taken out to measure out the properties and to allot the shares to the respective parties. Exts.C1 to C5 are the report and plans submitted by the Commissioner. 12. In total 9 items of properties are scheduled in the plaint and those properties are found partible among the respective shareholders. To the commission report, the 1[st] defendant had filed objection mainly contending that he is residing in the residential house located at Kollam and he requires the same for his residence. But the Commissioner has allotted the same in favour of the 1[st] plaintiff. On a perusal of the materials available on record, it is seen that the 1[st] plaintiff was residing along with the 2[nd] plaintiff till his death in the residential house at Kollam and both of them were unmarried. After the death of the 2[nd] plaintiff, the 1[st] plaintiff is continuing her residence in the very same building. There is another residential building in item No.2 property which is located in Alappuzha District. The Commissioner has R.F.A.600/2007 15 taken into consideration of the entire aspects involved in the case and strictly in compliance with the preliminary decree, had measured the property and allotted the shares and value of the building situated in the property had also been assessed with the help of an expert. Ext.C5 is the valuation report attached along with the plan and there is nothing on record to show that the allotment effected by the Commissioner is not correct. In the appeal memorandum, the 1[st] defendant has contended that the Commissioner has not prepared a plan for item Nos. 3 and 9 separately. But a perusal of the record would show that separate plans have been prepared for all items except item No.9 which is having only an extent of 2.750 cents. For all other items, separate plans have been prepared by the Commissioner as seen from the report. The sketch of the building situated in item Nos. 1 and 2 property had also been separately shown. The allotment was in consonance with the preliminary decree passed by the court, which is not under challenge 13. Ext.C4(a) is the plan prepared by the Commissioner for item Nos. 3 and 2. Item No.2 is having a total extent of 84 cents. But out of the same, 7 cents was given for kudikidappu. So only 77 cents (item No.2) is available for partition between the parties. This 77 cents was divided as 57 including kudikidappu of 7 cents and 27 cents as 2 plots with numbers II and III. Out of this 77 cents (item No. 2), 27 cents was set apart to the share of the 1[st] defendant and 57 cents was allotted to the share of the 2[nd] defendant. In the same plan, property comprised in Sy. No. 300/14B/2 (item No.3) of 42 cents is marked as I in Ext.C4(a). This 42 cents was also set apart to the share of the 1[st] defendant. So Ext.C4(a) is the plan for item Nos. 3 and 2. But of R.F.A.600/2007 16 course, a separate sketch has not been prepared for item No. 9 having an extent of only 2.750 cents in Sy. No. 279/7. Apart from that, for all the shares, the Commissioner had made division of the plots by metes and bounds with the help of an expert and the plan was prepared for all the other items and allotted plots with regard to their shares. As noted above on the basis of Ext.A1 will deed, the 1[st] plaintiff is entitled to get the share of the 2[nd] plaintiff also. It is pertinent to note that of course no share has been allotted to defendants 3 and 4 in the suit and they are not entitled to any share on the basis of the preliminary decree. But the court below as Clause (e) has set apart 2.750 cents of land which is scheduled as item No. 9 in Sy. No. 279/7 to the share of the 4[th] defendant. Though he is not entitled to get any share, it is made clear by the court below that such an allotment was made on the basis of the request of the 1[st] plaintiff. As per the commission report, this plot was set apart to the share of the 1[st] plaintiff. The said arrangement was made by the court below on the basis of the specific request made by the 1[st] plaintiff and that has been specifically mentioned in the judgment. Since item No. 9 is allotted to the share of the 4[th] defendant as per the request of the 1[st] plaintiff, there is no occasion to interfere with the said arrangement made by the court below. On a perusal of the materials available on record, it could be seen that the court below had accepted the commission report as such as it was found that the proposal of allotment of shares was on the basis of the entitlement of the parties. Therefore, there is no justifiable reason to discard the report. The proposal of the Commissioner was that the residential building in plot No.1 was not practically possible to divide, so as to allot a share to the 1[st] defendant. As it R.F.A.600/2007 17 was not feasible to divide the building into two, the said building was set apart to the share of the 1[st] plaintiff who was found residing in the same. The court below after hearing objections to the report passed the decree. As the building was incapable of proper division into two it was set apart to the share of the 1[st] plaintiff an aged lady that too a spinster. Such being the case, the said finding rendered by the trial court, is only to be upheld. The learned counsel has argued that in Ext.C4(d) plot No.1 having an extent of 47 cents was set apart to the share of the 2[nd] defendant and plot No.2 having an extent of 20.500 cents to the 1[st] defendant. But that has not been correctly described in the final judgment. Clause (c) in the decreetal portion of the final decree reads as follows: “(c) The plot Nos. 1 and 2 in the Ext.C4(a), the plot No.2 in the Ext.C4(b), the plot No.2 in the Ext.C4(c) and the plot No.2 in the Ext.C4(f) are allotted to the share of the first defendant as his due share in the plaint scheduled items.” 14. However, on a perusal of the plan and report submitted by the Commissioner, it is to be noted that a slight mistake had crept in while mentioning the plots allotted to the 1[st] defendant, as referred above. In fact, the plots to be allotted to the 1[st] defendant are as follows: Plot Nos. 1 and 2 in Ext. C4(a) Plot No. 2 in Ext. C4(d) Plot No. 2 in Ext. C4(e) Plot No. 2 in Ext. C4 (f) The mistake crept in could be corrected at the time of execution of the decree in terms of the final decree as narrated above and for that purpose alone the case need not be sent back to the court especially because of the fact that the case is of the year 1999. Justice should not be denied to the R.F.A.600/2007 18 parties who got share in the partition merely for a slight typing mistake which could be rectified in execution .Therefore,i find that there is no reason to remand the matter. But the shares entitled to, by the 1[st] defendant will stand corrected as stated above and the final judgment passed by the court below has to be executed by the respective parties as per law with the above modification. In short, I find no justifiable reason to interfere with the final judgment challenged before this court by the 1[st] defendant for the reasons narrated in the appeal memorandum. This Court also finds no illegality in the final judgment passed by the learned Sub-judge, based on the order in I.A.No.357/2007. In the result, the appeal fails and it is dismissed. Parties should suffer their respective costs. All pending interlocutory applications will stand closed. **Sd/-** **SHIRCY V.** **JUDGE** **sb**