The appellate court must ensure proper proof of a Will and establish the identity of property before decreeing a partition; failure to do so necessitates remand to the trial court.

JUDGMENT :

Easwaran S., J.

Defendants 17 to 21 in O.S.No.136/2008 on the files of Sub Court, Payyannur are the appellants herein.

2. Brief facts necessary for the disposal of the appeal are as follows:

O.S.No.136/2008 is a suit for partition, for partitioning plaint schedule property by meets and bounds and allow 28/252 shares to the plaintiff and allow such share to the defendants. The claim of the plaintiff is based on Ext.A1 Marupattam No.413/1938 of SRO Payangadi executed by one Genmi Kannan Nair in favour of Kolliyan Valappil Mathayi @ Mathi. The plaintiff contended that after the death of Mathayi the right and possession over the plaint schedule property devolved upon her children namely Umbachi, Kunhappu and Govindan and they died and their rights over the property would be devolved upon their respective legal heirs.

3. The defendants entered appearance and contested the suit contending that the plaintiff has no right title and interest over the plaint schedule property entitling him to seek partition. It is further contended that a partition deed was executed in the year 1967 as document No.389/1967 wherein a clause is inserted by which the possession of various properties in the hands of the parties to the partition deed is reserved to be kept by the respective sharers. One of the shares executed an Osyath as document No.18/75 on 26.07.1975 bequeathing the right, title and interest over the properties to be partitioned and therefore, the plaintiffs have no right and title over the property. It is further contended that the property is in absolute possession of the 1^st defendant as an independent holder, and Ext.B1 Purchase Certificate was produced to evidence the possession. Therefore, according to the defendants, when an independent right title and interest is claimed, the plaintiff has no right to seek partition.

4. On behalf of the plaintiff Exts.A1 to A5 were produced and PW1 was examined. On behalf of the defendants Exts.B1 to B17 were produced. An Advocate Commissioner was appointed to inspect the property, who filed Ext.C1 report and Ext.C2 plan. DW1 was examined on behalf of the defendants.

5. On an appreciation of the oral and documentary evidence, the trial court declined to grant partition over Item No.1 of the plaint schedule property and decreed the suit as regards Item No.2.

6. Aggrieved by the judgment and decree of the trial court, the 7^th and 9^th defendant preferred A.S No.91/2011 before the Additional District Court-I, Thalassery contending that the plaintiff and the defendants are entitled for partition over item No.1 of A schedule property as well. The First Appellate Court found that since the Will in question, Ext.B3 is not proved in accordance with Section 68 of the Evidence Act, 1872, the claim of the defendants has to fail. The 1^st Appellate Court also found that plaint item No.1 is not seen included in the partition deed of the year 1967 and therefore, it probabilises the case of the appellants for partition. Accordingly, the appeal was allowed. It is aggrieved by the judgment of the First Appellate Court decreeing the suit as regards Item No.1, Defendants 17 to 21 are on appeal before this Court.

7. Heard Sri.M.M.Anto, the learned counsel appearing for the appellants and Sri.M.Sasindran, the learned counsel appearing for the respondents Nos. 1,2 4 to 9 and 12 to 14.

8. When the appeal was admitted, this Court framed the following questions of law:

“d. Whether the lower appellate court is legally justified in ignoring the partition in the year 1967 excluding R.S 38/3 will in the year 1975 allotting R.S.38/3 in favour of D1 and certificate of purchas