The appellate court allowed a remand for further evidence to prove the execution of documents, emphasizing the importance of fair trial rights under the Evidence Act.

JUDGMENT :

C.Pratheep Kumar, J.

The defendants in O.S.1263/2011 on the file of the II Additional Sub Court, Thrissur, are the appellants. ((For the purpose of convenience the parties are hereafter referred to as per their rank before the trial court.).

2. The plaintiffs filed the above suit for partition. Plaintiffs 1 to 6 are the daughters of deceased Kunjunni and the 1^st defendant Thanka. Defendants 2 to 4 are their sons. Kunjunni died on 29.11.1991. Admittedly the plaint schedule property item Nos.1 and 2 belonged to late Kunjunni. According to the plaintiffs, Kunjunni died intestate and as such, the plaintiffs 1 to 6 and defendants 1 to 4 are entitled to get ¹ 10 share each from the plaint schedule property. Though they have issued Ext.A2 notice demanding partition of the properties amicably, the defendants refused to cooperate and hence they preferred the suit for partition.

3. In the written statement filed by the defendants they have contended that during the life time, Kunjunni assigned 14 cents from plaint schedule item No.2 in favour of the 3^rd defendant and regarding the remaining property in item No.2 and regarding item No.1 property he had executed Ext.B1 Will dated 21.5.1982. Therefore, according to them, the plaint schedule properties are not available for partition. Accordingly, they prayed for dismissing the suit. Thereafter, the plaint was amended incorporating the pleadings denying execution of Ext.B1 Will as well as Ext.B12 settlement deed. The prayer was also amended and a new prayer for declaring that Ext.B1 Will and B12 settlement deed are not binding on the plaintiffs and the plaint schedule property and if required to set aside those documents was also added.

4. The trial court framed seven issues. The evidence in the case consists of the oral testimonies of PW1 and DWs1 to 5 and Exts.A1 to A3 and B1 to B13. After evaluating the evidence on record, the trial court found that the defendants failed to prove the execution of Ext.B1 Will and Ext.B12 settlement deed and accordingly, a preliminary decree for partition in tune with the prayer in the suit was passed. Being aggrieved by the above preliminary decree and judgment, the defendants preferred this appeal.

5. Now the points that arise for consideration are the following :

(1) Whether the defendants have succeeded in proving the execution of Ext.B1 Will and Exts.B12 settlement deed ?

(2) Whether the impugned judgment and decree of the trial court calls for any interference, in the light of the grounds raised in the appeal ?

6. Heard Sri.S.V.Balakrishna Iyer the learned Senior counsel appearing for the appellants as instructed by Sri.P.B.Subramanyan and Sri.K.R.Arun Krishnan, the learned counsel for the respondents

7. The points- Admittedly plaintiffs 1 to 6 are the daughters and defendants 2 to 4 are the sons of late Kunjunni and the 1^st defendant Thanka. It is also admitted that the plaint schedule item No.1 consists of 35 cents and item No.2 consists of 36 cents belonged to late Kunjunni who died on 29.11.1991 and Ext.A1 is his title deed in that respect. While according to the plaintiffs Kunjunni died intestate and as such, the plaint schedule properties are partible among the plaintiffs and defendants, according to the defendants Kunjunni settled a portion of schedule property from item No.2 in favour of the 3^rd defendant as per Et.B12 settlement deed dated 20.5.1982 and with regard to the remaining properties he had executed Ext.B1 Will dated 21.5.1982.

8. In order to prove the due execution of Ext.B1 Will and Ext.B12 settlement deed, the defendants examined DWs1 to 5. In Ext.B1 Will as well as in Ext.B1