## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT:**
## **THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN**
**MONDAY, THE 22ND DAY OF JULY 2013/31ST ASHADHA, 1935**
## **SA.No. 444 of 2000 (C)**
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**AGAINST THE JUDGMENT IN AS 208/1999 of ADDL.SUB COURT, IRINJALAKUDA DATED 18-11-1999**
**AGAINST THE JUDGMENT IN OS 869/1997 of MUNSIFF COURT, KODUNGALLUR DATED 31-08-1999**
**APPELLANT/APPELLANT/PLAINTIFF:**
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**RADHAKRISHNAN, S/O. KOLANTHRA UNNURIKUTTY, EDATHIRUTHY VILLAGE AND DESOM, KODUNGALLUR TALUK, THRISSUR DISTRICT.**
**BY ADV. SRI.P.R.SHAJI**
## **RESPONDENTS/RESPONDENTS/DEFENDANTS:**
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**1. SANTHAKUMARI, D/O. KOLANTHRA, UNNIRIKUTTY, EDATHIRUTHY VILLAGE AND DESOM, KODUNGALLUR TALUK NOW AT W/O.KOLLARA RANTNAKARAM P.O., KIZHUPILLY KARA PERINGOTTUKARA.**
**2. VIMALA D/O. - DO - - DO -, NOW AT VIMALA VARGHESE, P & T QUARTERS, POOTHOLE, THRISSUR,**
**3. VASANTHAKUMARI, KOLANTHARA – DO – AND W/O.SAMACHITHAN, KANNOLY P.O. EDATHIRUTHY**
**4. SHEEJA D/O. - DO - - DO -**
**5. SHEEBA D/O. - DO - - DO-**
**R1,R3,R4 & R5 BY ADV. SRI.V.M.KRISHNA KUMAR**
**THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 22-07-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
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## **N.K. BALAKRISHNAN, J.**
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## S.A. No. 444 of 2000
-----------------------------------------Dated this the 22[nd] day of July, 2013
## **J U D G M E N T**
Plaintiff in a suit for partition is the appellant. His suit was dismissed by the trial court. The appeal filed by him also met with the same fate.
2. The case of the plaintiff is that the plaint schedule property belonged in jenmom to Kunjunni Nair from whom his grandfather had obtained lease and on the death of the grandfather, plaintiff's father Unnirikutty was in possession of the property as lessee and he obtained patta. On the death of Unnirikutty the property was in the possession of his mother Karthiyayani and children of Unnirikutty including the plaintiff. Karthiyayani was managing the property on behalf of the co-owners. Karthiyayani died subsequently and hence the plaintiff contends that he is entitled to get 1/6 share in the said property.
## **S.A. No.444/2000**
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3. The defendants resisted the suit denying the oral lease in the name of the plaintiff's grandfather as alleged in the plaint. It is alleged that the plaintiff's grandfather or father was not in possession of the property as lessee or otherwise. It was obtained on oral lease by Karthiyayani and she obtained purchase certificate in respect of the said property as evidenced by Ext.B1. There was an oral partition of the property on 20.3.1989 in the presence of the plaintiff's father's elder brother Velayudhan, as per which the sharers including the plaintiff were in possession of the different plots. Plaintiff's brother – Nandan died intestate and as bachelor in 1989.
4. It is further contended that the motherKarthiyayani executed a registered Will – Ext.B2, in tune with the allotment made in the oral partition. It is contended that the plaintiff along with his two sisters – D1 and D2 were allotted 28½ cents of property as per the oral
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partition and as per Ext.B2 – Will.
5. Before the court below, the plaintiff and three witnesses were examined as PWs 1 to 4 and Exhibits A1 and A2 were marked. On behalf of the defendants, DWs 1 to 6 were examined and Exhibits B1 to B5 were marked. Commissioner's report and plan were marked as Exhibits C1 and C1(a). Exhibit X1 is the file produced by the Tahsildar, Land Tribunal, in respect of the proceedings in S.M. No.714/1975.
6. The trial court found the evidence given by DW4 – Velayudhan, the elder brother of plaintiff's father, who spoke in tune with the case of the defendants that partition was effected in the presence of all the legal heirs. It was also found that it was in tune with the oral partition so effected. Ext.B2 – Will was executed and registered by the plaintiff's mother – Karthiyayini. The execution of Ext.B2 – Will was not denied by the plaintiff by causing amendment
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to the plaint or by filing replication. Hence, accepting the case put forward by the defendant, the claim for partition was disallowed and the suit was dismissed.
7. The lower appellate court, considering the entire evidence, concurred with the findings entered by the trial court and thus the appeal was dismissed.
8. The following substantial questions of law were formulated in this case:
i. Whether the purchase certificate holder can be treated as the absolute owner of the property when she is holding the property on and of the co-owner also?
ii. Whether a partition can be treated as a valid partition especially in the circumstances that the partition is based on the Will alleged to be executed by the mother of the Appellant and respondent, who has no absolute right over the plaint schedule property?
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9. The learned counsel for the appellant would submit that the courts below should have found that Ext.B2 Will was not proved in the manner required by section 68 of the Indian Evidence Act and section 63 of the Indian Succession Act, which requires that a Will has to be proved by adducing evidence regarding the execution and attestation of the Will as required by section 63 of the Indian Succession Act, for which at least one attesting witness should have been called, for the purpose of proving its execution and attestation by the testator. In support of his submission the learned counsel has relied upon the decision of the Supreme Court in **M.B.Ramesh (D) by LRs v. K.M. Veeraje Urs (D) By LRs and others – 2013 SAR (Civil) 574** .
10. The learned senior counsel appearing for the respondents would submit that the aforesaid decision has no application to the facts of this case since no challenge was
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made against Ext.B2 – Will by filing amendment to the plaint or by filing a replication. It is also argued that the specific case advanced by the defendants is that, mother – Karthiyayini executed Ext.B2 – Will in confirmation and in tune with the oral partition already effected in the presence of DW4 – Velayudhan. The credibility and acceptability of DW4 could not be effectively challenged by the appellant. Since he was the elder brother of plaintiff's father and since he was the competent person to have an amicable allotment of the property even during the life time of Karthiyayini, the courts below were perfectly justified in relying upon the evidence given by DW4.
11. It is vehemently argued by the learned counsel for the appellant that the purchase certificate obtained by Karthiyayini must enure to the benefit of all the legal heirs of Unnirikutty. This argument is on the premise that the property belonged to Unnirikutty. In the plaint, his case is
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## **S.A. No.444/2000**
that the property was obtained by his grandfather by oral lease. No document has been produced to show that his grandfather was in possession of the property as lessee nor is there any evidence to show that his father was holding the property as the legal representative of his grandfather or as a lessee, having obtained the property on lease. Though, it was contended that Unnirikutty had obtained Pattayam in respect of the same property, no pattayam was produced by him. In fact, that case was given up by the plaintiff during trial. In the absence of any other evidence it can only be held that the property was held by Karthiyayini as lessee. She had obtained Ext.B1 purchase certificate in 1975.
12. The suit was filed in 1997. At the fag end of the trial in 1989, the plaintiff filed an application to call for the file in S.M. Proceedings Nos. 714/1975. That was allowed. But that file had nothing to do with Ext.B1. The learned
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## **S.A. No.444/2000**
counsel submits that it was later found that there is a mistake in noting the file number; instead of the file in O.A. No.714/1975, what was requested to be called for was pertaining to S.M. Proceedings 714/1975. So, according to him he had filed application to send for the file in O.A. No.714/1975. But that application was not allowed. The plaintiff had sufficient opportunity to get the file from the Land Tribunal. That apart, by producing the file, he cannot advance his case that the property was originally obtained by his father Unnirikutty. No document or other evidence was adduced to prove that the property was held by Unnirikutty as lessee. As such the findings entered by the courts below that the property was held by Karthiyayini as lessee is only to be accepted.
13. The contention that the Will was not proved also stands stultified by the fact that there is evidence regarding the execution and attestation of the same as spoken to by
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DW5. Even if it is accepted that the evidence given by DW5 regarding the attestation is unacceptable, still, the oral partition spoken to by DW4 does not suffer from any infirmity. The courts below rightly accepted the same and found that the claim for partition made by the plaintiff is unacceptable. No vital document was omitted to be considered nor is there any perverse appreciation of evidence by the courts below.
Hence, this Second Appeal is dismissed.
Sd/N.K. BALAKRISHNAN, JUDGE
//True Copy//
P.A. to Judge
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