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1990 Supreme(Ker) 40
Judges : VARGHESE KALLIATH
Koman Nambiar - Appellant
Versus
Lakshmikutty Appissi - Respondent
Case No : A.S. No. 140 of 1982, cross objection
Decided On : 01/25/1990
Advocates Appeared :
T.R. Govinda Warriyar; For Appellant P.N.K. Achan; P.N. Raveendran; For Respondents
The main legal point established in the judgment is the application of the principles related to partition, Will, and revocation, including the burden of proof, presumption, and reappreciation of evidence on appeal.
Headnote:
Partition - Genealogy - Ext.B7 - Ext.B1 - Will - Revocation - Plaintiffs' claim - Tavazhi property - Compensation - Cross objection
Fact of the Case:
The case involves a dispute over the partition of properties originally belonging to Govinda Kurup and Ithooli Appissi. The plaintiffs claim a share in the properties left by Ithooli Appissi and Govinda Kurup, while the defendants argue that the plaintiffs have no right to these properties due to a Will left by Govinda Kurup and the separation of the plaintiffs' mother into a different tavazhi.
Finding of the Court:
The court found that the properties obtained by Ithooli Appissi were to be partitioned based on the number of members at the time of her acquisition, and the plaintiffs were entitled to a share. The court also confirmed the lower court's decree of partition and modified it to grant the plaintiffs a share in the compensation payable for certain properties. Additionally, the court dismissed the cross objection filed by some of the defendants.
Issues: The main issues revolved around the nature of the properties left by Ithooli Appissi and Govinda Kurup, the existence of the Will, and the revocation of the Will.
Ratio Decidendi: The court applied the principle that a Will can be proved with a registered copy if the original is not available, and the burden of proving revocation lies on those claiming it. The court also considered the presumption of revocation and the need for sufficient evidence to rebut it. Additionally, the court emphasized the importance of reappreciating evidence and the standard for interfering with findings of fact on appeal.
Final Decision: The court confirmed the lower court's judgment and decree, with slight modifications, and dismissed the cross objection filed by some of the defendants.
1. This is an appeal by the first plaintiff in a suit for partition. In the plaint, there are five schedules. Schedule A gives the genealogy relevant for the purpose of the suit. Schedules B and Care immovable properties to be partitioned. Schedules D and E are some debts to be realised which are liable to be partitioned. Schedule F deals with movable properties. In schedule A genealogy these relevant facts are given.
2. Originally the properties now sought to be partitioned belonged to Govinda Kurup and Ithooli Appissi. Ithooli Appissi is the wife of Govinda Kurup. By Ext.B7 dated 7-8-1937, the properties of Govinda Kurup and Ithooli Appissi were partitioned. Govinda Kurup took A schedule property in Ext.B7 and Ithooli Appissi took B schedule property. The properties taken by Ithooli Appissi and some other items Ithooli Appissi got from her tarwad partition are the properties mentioned in B schedule of the plaint. C schedule property in the plaint is the A schedule Govinda Kurup got under Ext.B7.
3. Govinda Kurup and Ithooli Appissi had four children, Kunhukutty Appissi, Kunhikutty Appissi, Lakshmikutty Appissi and Kali alias Kuttimalu Appissi. Kunhukutty Appissi is the first defendant and Lakshmikutty Appissi is the second defendant. Kunhikutty Appissi had four children. Plaintiffs land 2, Koman Nambiar and Balakrishnan Nambiar are the two sons of Kunhikutty Appissi. It is stated that one son Ramankutty Nambiar died and the other son Govindankutty Nambiar is defendant No.13. Kunhukutty Appissi and Lakshmikutty Appissi had no children. Kali alias Kuttimalu Appissi had two daughters, Karthiyani and Devaki. Karthiyani is the third defendant and Devaki is the fourth defendant. Karthiyani had three children, defendants 5,6 and 7. Devaki's children are defendant No.8, 9,10,11 and 12. 16th defendant is the husband of Devaki.
4. Govinda Kurup died on 31-1-1969 and Ithooli Appissi died in 1966. Kunhikutty Appissi and Kali alias Kuttimalu Appissi died in the year 1946. Immediately after the partition between Govinda Kurup and his wife under Ext.B7 on the same day there was another partition in regard to the properties obtained by Ithooli Appissi under the partition between herself and her husband. This partition is evidenced by Ext.B1. By this partition, Kunhikutty Appissi was separated as one tavazhi and Ithooli Appissi and her remaining three children and the children of Kali alias Kuttimalu Appissi from another tavazhi. In Ext.B1, it is stated that Ithooli Appissi took two shares out of the seven shares, because at the time of Ext.B1, there were seven members in the family including one in the womb of Kali alias Kuttimalu Appissi. Plaintiffs claim share in the property of Ithooli Appissi and the properties left by Govinda Kurup. The case of the defendants is that the plaintiffs cannot have any right in the properties left by Ithooli Appissi and Govinda Kurup because the plaintiffs' mother got herself separated into a different tavazhi and by that separation, herself or her children have lost all claims in regard to the property of Ithooli Appissi. In regard to the properties left by Govinda Kurup, the defendants contended that Govinda Kurup has left a Will, Ext.B5 (Copy of the Will) in the year 1937 by which the entire properties of Govinda Kurup were bequeathed to his three daughters, Kunhukutty Appissi, Lakshmikutty Appissi and Kali alias Kuttimalu Appissi and his wife, Ithooli Appissi. When the Will took effect on the death of Govinda Kurup, the only legatees under the Will were the two daughters; Kunhukutty Appissi and Lakshmikutty Appissi. If the Will is true and genuine, plaintiffs cannot claim any title to the properties of Govinda Kurup and as such those properties are not partible.
5. In regard to the share of property of Ithooli Appissi, on her death the plaintiffs have got a right to claim share in that property. Even it is admitted that by Ext.B7 partition the properties were partitioned on the basis that the pr
