JUDGMENT :

This regular second appeal has been filed under order XLII Rule 1 read with Section 100 of the Code of Civil Procedure (“CPC” hereinafter) challenging the decree and judgment in A.S. No.88 of 2013 dated 26.09.2019 on the files of the Court of the Principal District Judge, Kottayam arose from the decree and judgment in O.S. No.188 of 2011 dated 26.02.2013 on the files of the Munsiff Court, Vaikom. The appellants herein are defendants and respondents are plaintiffs in the above suit.

2. Heard the learned counsel for the appellants, on admission. Perused the relevant materials and the verdicts under challenge.

3. I shall refer the parties in this appeal with reference to their status before the trial court.

4. In this matter, plaintiffs filed suit for partition of the plaint schedule property originally belonged to Smt.Ambujakshi by virtue of sale deed No.431/1981 of Vaikom S.R.O. According to the plaintiffs, Smt.Ambujakshi died intestate on 10.02.2011 and the plaint schedule property devolved upon the plaintiffs and 1st defendant. Since, the demand for separate possession was refused by the defendants, the present suit was filed claiming ¼ share each to the plaintiffs and the 1st defendant.

5. The 1st defendant filed written statement and resisted the suit raising contention that the plaint schedule property is not partible since, he got title over the same on the strength of Will Deed No.15/2011 of Kuthiyathodu S.R.O. It was also contended that, later he had executed settlement deed No.1194/2011 of Vaikom S.R.O, in favour of his daughter, who is the 2nd defendant.

6. The trial court recorded evidence and tried the matter after addressing rival contentions. PWs 1 to 4 examined and Exts.A1 and A2 marked on the side of the plaintiffs. DWs 1 to 4 examined and Exts.B1 to B4 marked on the side of the defendants. Exts.X1 and X2 were also marked.

7. Finally, the trial court decreed the suit and allowed partition after holding that Ext.B1 Will failed to be proved by the 1st defendant after removing the doubtful circumstances surrounding thereof.

8. Though, appeal was filed before the Appellate Court, vide A.S. No.88/2013, the Appellate Court also re-appreciated the evidence and concurred the finding of the trial court.

9. While assailing the concurrent verdicts, negating the claim raised by the 1st defendant, on the strength of Ext.B1 Will, the learned counsel for the defendants placed a decision of the Division Bench of this Court reported in Ajay P. Asher v.Kirit P.Asher and Another [2011 (3) KHC 288], wherein this Court considered the manner in which a Will to be proved and the manner in which suspicious circumstances to be removed. The relevant paragraphs of the above decision are extracted hereunder:

“The only case projected by the plaintiff, that too, by way of an amendment to the plaint when Ext. B9 Will was pressed into service under the written statement of the 1st defendant to resist the claim of partition, was that such testament was vitiated by undue influence, however, without furnishing any specific particulars how it was vitiated. The fact that a challenge to the Will was made only on the aforesaid ground, no doubt, would not relieve the propounder from establishing the genuineness of the Will, and if, there is any circumstance arousing suspicion in its making, why it should not be taken as a suspicious circumstance affecting the validity of the Will. The propounder of the Will has to show that it was signed by the testator. He was at the relevant time having a sound disposing state of mind and he understood the nature and effect of the dispositions. He has put his signature to the testament of his own free will and he has signed it in the presence of two witnesses who attested it in his presence and in the presence of each other. The mandate under Section 63 of the Indian Succession Act as regards the due execution of a Will complying with the requirements as aforesaid are to be established by the propounder of the Will