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Judges : U.L.BHAT,RAMAKRISHNAN
Sumangala T.Pai - Appellant
Versus
Sundaresa Pai - Respondent
Case No : AS. No. 56 of 1986
Decided On : 09/19/1990
Advocates Appeared :
N.P. Samuel & P.V. Chandramohan For Appellant S. Ananthasubramanyan For Respondents
Will - Partition - [Succession, Property, Will] - [Indian Succession Act, 1875 - Section 63, Evidence Act, 1872 - Section 67, 68, 45, 47] - The court discussed the validity of the Will and the entitlement of the plaintiff to a share in the estate of the deceased. The court found that the Will was not proved to be the last Will and testament of the deceased, and the plaintiff was entitled to a 1/6th share in the assets of the deceased. The court also directed the trial court to decide the controversies regarding the deceased's Will and portable assets, and to pass a preliminary decree after giving an opportunity to both sides to adduce further evidence.
Fact of the Case:
The plaintiff filed a suit for partition of the moveable and immoveable properties belonging to the deceased, claiming a 1/6th share in the estate on the ground that the deceased died intestate. The defendants set up a contention that the deceased had executed an unregistered Will. The trial court upheld the Will and dismissed the suit.
Finding of the Court:
The court found that the Will was not proved to be the last Will and testament of the deceased, and the plaintiff was entitled to a 1/6th share in the assets of the deceased. The court also set aside the finding that the plaintiff was entitled to a 1/5th share after the death of the first defendant, and directed the trial court to decide the controversies regarding the deceased's Will and portable assets.
Issues: The issues included the validity of the deceased's Will, the entitlement of the plaintiff to a share in the estate, and the controversies regarding the deceased's Will and portable assets.
Ratio Decidendi: The court held that the Will was not proved to be the last Will and testament of the deceased, and the plaintiff was entitled to a 1/6th share in the assets of the deceased. The court also directed the trial court to decide the controversies regarding the deceased's Will and portable assets, and to pass a preliminary decree after giving an opportunity to both sides to adduce further evidence.
Final Decision: The appeal was allowed, the decree and judgment were set aside, and the suit was remanded to the trial court for fresh disposal in accordance with law and in the light of the findings and observations contained in the judgment. The court also declined the prayer for a certificate under Article 133(1), read with 134(A) of the Constitution of India.
Bhat,J.
Plaintiff in a suit for partition is the appellant herein.
2. First defendant is the husband, plaintiff and fifth defendant are the daughters and defendants 2 to 4 are the sons of Indira Bai who died on 13-11-1981. First defendant died when the suit was pending in the trial court. Plaintiff filed the suit for partition of the moveable and immoveable properties belonging to Indira Bai and separation of her 1/6th share therein on the ground that Indira Bai died intestate. The suit was resisted by registered notice Ext.A8 demanding share. In the reply notice defendants set up a contention that Indira Bai had executed Ext.Bl unregistered Will dated 26-8-1981. According to the plaint, Will is not true and genuine and has been forged and fabricated with the sole object of defeating the claims of the plaintiff. After the death of the first defendant plaint was amended to state that plaintiff is entitled to fractional share in the share of the first defendant. Defendants 1 and 5 filed joint written statement. Defendants 2 to 4 also filed joint written statement. All the defendants set up Ext.Bl Will in answer to the plaintiffs claim. The trial court upheld Ext.Bl Will and dismissed the suit but without costs.
3. Schedule A to the plaint describes five items of immovable properties belonging to Indira Bai. Item(1) is 46 cents of land situated in Ernakulam Village which must obviously be a very valuable piece of land. Item (2) is a plot of land measuring 20 cents containing two houses and situated in Ernakulam Village, which also is a valuable piece of land. Item (3) is 6 cents of land in Cheranelloor, a few kilometers away from Ernakulam. Items (4) and (5) are two plots of dry land measuring 1.95 acres and 3 acres respectively situated in Puthencruz Panchayat; not far away from Ernakulam. Schedule B to the plaint gives a list of movables allegedly belonging to Indira Bai whose total value is given as Rs.6,66,925/-. According to written statements, item (3) of plaint B schedule is imaginary and the correct value of other items is only Rs.2,30,000/-.
4. If Indira Bai died intestate plaintiff is admittedly entitled to 1/6th share; so also each of the other heirs would be entitled to 1/6th share. Under the terms of Ext.Bl Will, ten cents of land in item (2) with two houses is bequeathed to the plaintiff and the other ten cents of land is bequeathed to the fourth defendant and the other items are bequeathed to the third defendant. The Will contains no bequest in favour of defendants 1, 4 and 5. The Will bequeaths all the movables to three sons in equal share.
5. There is no dispute that Indira Bai, her husband and her sons were living together. The father and the sons are engaged in jewellery business in Ernakulam Town. Evidently it has been a successful business. Plaintiff is married to a lawyer examined as P.W.2. Fifth defendant was married to a person working under the first defendant. It is in evidence that fifth defendant and her husband on account of misunderstanding with the first defendant started living separately. He was sick for a long time and ultimately died. Thereafter fifth defendant came to live with her father under his protection. She continues to live with her brothers.
6. Second defendant has been examined as DW-1. He has to get ten cents of land and one-third share in the movables under Ext.Bl. DW-2 is one of the attestors. He is a lawyer of this family. They speak in support of the Will. Plaintiff examined as P W-1 and her husband examined as PW-2 speak against the genuineness of the Will.
7. The evidence of DW-1 in chief-examination can be summarised as follows: Ext.Bl was executed after consulting DW-2. DW-2 was present when it was finalised. DW-1 was present when it was written on 26-8-1981. DW-1 saw Indira Bai signing in the presence of first defendant and DW-2 who were the attestors and the testator saw attestors also signing. He purported to identify the signatures in Ext.Bl as those of Indira Bai. A
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