Point of Law: Section 71 of Act 1872 has no application in a case where one attesting witness who alone had been summoned fails to prove execution of Will.

JUDGMENT :

The defendants 1 and 2 in O.S. No.605 of 2008 on the files of the Court of the Additional Subordinate Judge, Palakkad are the appellants in R.S.A. No.222 of 2016 filed under order XLII Rule 1 and 2 read with Section 100 of the Code of Civil Procedure. The respondents herein are the plaintiff as well as the 3rd defendant. The appellants assail decree and judgment in A.S. No.129 of 2010 dated 29.11.2014 on the files of the II Additional District Court, Palakkad arose from decree and judgment in O.S. No.605 of 2008 dated 29.01.2010 on the files of the Additional Sub Court, Palakkad.

2. R.S.A No.603 of 2015 has been filed under order XLII Rule 1 and 2 read with Section 100 of the Code of Civil Procedure challenging the decree and judgment in A.S. No.115 of 2010 dated 29.11.2014 on the files of the II Additional District Court, Palakkad arose from decree and judgment in O.S. No.272 of 2007 dated 29.01.2010 on the files of the Additional Sub Court, Palakkad. The appellant herein is the plaintiff in O.S. No.272 of 2007 and the respondents herein are the defendants.

3. Heard both sides in detail.

4. Parties in this appeal shall be referred as “plaintiff” and “defendants” with reference to their status before the trial court.

5. At the time of admission, as per order dated 08.11.2017, my learned predecessor formulated the following question of law in R.S.A. No.222 of 2016:

"Have not the courts below gone wrong in interpreting the property scheduled as item No.5 in C schedule to Exhibit-A1, merely as superstructure alone without the land appurtenant thereto?"

6. R.S.A. No.603 of 2015 being connected with the above, arose out of common judgment, also got admitted to decide the said substantial question of law.

7. Facts in O.S. No.272/2007 are as under:

This suit is one for partition and separate possession filed by Sri.N.C.Aravindakshan, who is the plaintiff/appellant. The defendants/respondents herein are N.C. Mohandas, Kanakarathanam, Prasanna and M.Abindas. According to the plaintiff, the father of the plaintiff as well as defendants 1 and 3 obtained item Nos. 1 to 4 in the plaint schedule as per the A-schedule to the partition deed No.1347/1973 of Parali S.R.O. Similarly, plaint schedule item No. 5 was purchased by the father Mr. Chinnan as per the registered assignment deed No.313/1964 of Parali S.R.O. Since, the father died, properties are liable to be partitioned in between the plaintiff and defendants 1 to 3. The 2nd defendant is the wife of Mr.Chinnan. The 4th defendant got arrayed in the party array since some extent of property in the schedule is covered by 'Will deed' executed in favour of the 4th defendant also.

8. The defendants 1 and 2 filed joint written statement raising the following contentions:

The pleadings contained in paragraph 1 of the plaint are not fully correct. It is false to say that the plaint schedule item No.5 was purchased by father Chinnan as per the assignment deed executed in the year 1964. Father Chinnan had no right over the entire property shown in the schedule to the plaint at the time of his death. Father sold 55 cents of land from the plaint schedule item No.2 to Smt.Kamalakshy as per the registered assignment deed dated 10.11.1997. Father had freely and voluntarily executed a Will on 04.02.1994. The 4th defendant got right over the plaint schedule item No.3 as per the Will executed by father Chinnan. The first defendant got right over the plaint schedule item No.4 as per the Will executed by the father. Father Chinnan sold 5 cents of land from the plaint schedule item No.5 to Appukuttan and his wife Kanakavalli as per the registered assignment deed dated 28.03.1998. Similarly, father Chinnan had assigned 10 cents of land from the plaint schedule item No.5 to Smt.P.Dhanalakshmy by virtue of the assignment deed dated 03.11.2001. The assignees are in possession and enjoyment of the properties purchased by them. The first defendant got right over 1 acre and 49 cents of land forming part of the plai