RAMKUMAR, J.

1. In this intra-court appeal filed under Section 5 of the Kerala High Court Act, 1958, the sole plaintiff in O.S.No.223 of 1983 on the file of the Subordinate Judge’s Court, Thrissur, challenges the appellate Judgment and decree passed by a learned single Judge of this Court in A.S.441 of 1988. The said suit was one for realisation of a sum of Rs.20,000/- from the appellants’ step mother one Parukutty Amma and her daughter Sukumari on the allegation that the said amount was the sale consideration due to the appellant under Exts.A1 to A3 sale deeds.

JOINT-TRIAL – The partition suit

2. The present suit was jointly tried along with O.S.No.182 of 1983 which was a suit filed by the said Parukutty Amma and her daughter Sukumari seeking partition and separate possession of 2/3 shares over 6 items of immovable properties described in the plaint schedule. In the partition suit the mother and daughter alleged that the suit properties absolutely belonged to late P. Narayanan Ezhuthassan, that before Narayanan Ezhuthassan married Parukutty Amma, even though he had executed a will in the year 1945 purporting to bequeath the suit properties in favour of his two sons Vasu @ Bhaskaran (the appellant herein) and his brother Sukumaran with regard to the suit properties, Narayanan Ezhuthassan never intended to give effect to the will, that Parukutty Amma and Sukumari were living together along with Vasu @ Bhaskaran and his brother Sukumaran, that the suit properties were jointly enjoyed by all of them and that the appellant had consciously abandoned his rights under the will in respect of the properties covered by the will. The mother and daughter further alleged that while the said properties were enjoyed by all of them jointly, portions of the properties were jointly sold away by them in the years 1973, 1978 and 1981 as evidenced by Exts.B4 to B6 and A1 to A3. Thus, in O.S.182 of 1983 Parukutty Amma and her daughter Sukumari claimed 2/3 shares over the suit properties. The appellant herein and his wife and children were the defendants in the partition suit.

DEFENCE TO THE PARTITION SUIT

3. The appellant besides maintaining his contentions in the present suit (O.S.223/1983) resisted the partition suit contending inter alia as follows:-

Even before Narayanan Ezhuthassan had married Parukutty Amma, he had executed Ext. A1 registered will as per which the plaint schedule properties except item 5 (admeasuring 66 cents) were bequeathed to the appellant Vasu @ Bhaskaran) and his brother Sukumaran. Subsequently, Narayanan Ezhuthassan married Parukutty Amma. Sukumari is the daughter born in Narayanan Ezhuthassan in Parukutty Amma. Till the death of Narayanan Ezhuthassan, Parukutty Amma was ostensibly looking after the appellant and his brother Sukumaran as her own children only for the purpose of pleasing her husband Narayanan Ezhuthassan. Eventhough, on the death of Narayanan Ezhuthassan in the year 1953 the suit properties had vested in the appellant and his brother Sukumaran, Parukutty Amma had fraudulently concealed Ext.A16 will executed by Narayanan Ezhuthassan from the appellant and his brother Sukumaran. Parukutty Amma got Sukumaran involved in a criminal case and he was forced to leave the place fearing the police in the year 1969. Eversince then the whereabouts of Sukumaran are not known and he is, therefore, to be presumed to be no more. Exts.B4 to B6 and A1 to A3 sale deeds were jointly executed by Parukutty Amma and the appellant. The appellant was made to believe that he was a joint owner along with Parukutty Amma. It was only subsequent to Ext.A1 to A3 sale deeds in the year 1981 that the appellant came to know of Ext.A16 will executed by his father. Parukutty Amma and her daughter Sukumari have no rights at all over the properties bequeathed to the appellant and his brother Sukumaran and which after the prolonged disappearance of Sukumaran have vested absolutely in the appellant. O.S.No.223/83 filed by the appel