JUDGMENT :

The defendant in O.S. No. 378 of 1998 on the files of the Sub Court, Thrissur, is the appellant herein.

2. A suit was filed for partition of the plaint schedule property by the respondents herein. The plaintiffs and the defendant in the said suit are the children of deceased Rappai and Mariam. The plaint schedule property belonged to the deceased Mariam, and the plaintiffs instituted the suit relying on a Will executed by Mariam in the year 1994. It is stated that the mother had earlier filed O.S. No. 148 of 1995 against the defendant for recovery of possession of the plaint schedule property, and she died on 29.01.1998. The plaintiffs contend that the defendant is in possession of the plaint schedule property and that the Will executed in 1994 is the last Will of the mother, but the defendant is not willing to hand over possession of the property to them.

3. The appellant herein contends that he is a disabled person and that his mother was residing with him. According to him, the house and the plaint schedule property were set apart in his favour as per a registered Will executed by Mariam as Document No. 190/1976 of the Sub Registry Office, Thrissur. It is further contended that after the execution of the said registered Will, the defendant has been in exclusive possession and enjoyment of the property for the last 24 years and has thereby perfected title by adverse possession.

4. The trial court passed a preliminary decree partitioning the plaint schedule property. The appellant contends that the suit for partition is not maintainable since the deceased Mariam had filed O.S. No. 148 of 1995 before the Munsiff’s Court for recovery of possession of the plaint schedule property from the appellant, which was dismissed. It is therefore argued that the issue in the present suit is barred by res judicata, as the question regarding possession of the plaint schedule property has attained finality in O.S. No. 148 of 1995. The appellant also denies the execution of Ext.A6 Will in 1994 by the mother, contending that it is not genuine and that no evidence has been adduced by the plaintiffs to prove its execution.

5. It is further submitted that the plaintiffs have admitted that they have received their respective shares in the family property and that the plaint schedule property had been set apart for the defendant as per an oral partition. It is also contended that the appellant has been in possession of the property from 1976 onwards, which indicates that the shares in the family property had already been settled. It is further contended that Ext.A6 Will was executed on 15.02.1994 and that, as per Section 213 of the Indian Succession Act as it then stood, the Will could not have been relied upon by the court below unless it was probated. It is argued that was amended only after the execution of Ext.A6 Will, and hence the court below ought not to have relied on Ext.A6 Will in the absence of probate.

6. It is also contended that the trial court failed to consider the improvements made by the defendant in the property, and that the value of such improvements exceeds the value of the property itself. According to the appellant, these aspects ought to have been considered while passing the judgment. The appellant therefore seeks to set aside the judgment and decree passed by the Sub Court, Thrissur in O.S. No. 378 of 1998 and to dismiss the suit.

7. Heard Sri. Dinesh Mathew J Murikan, for the appellant and Sri. K.B. Gangesh for the respondent.

8. The learned counsel for the appellant relied on the decisions in N. Kamalam (Dead) and Another v. Ayyasamy and Another [ (2001) 7 SCC 503 ], Yumnam ONGBI Tampha Ibema Devi v. Yumnam Joykumar Singh and Others [(2009) 4 SCC 780], Rathnamma v. Omana (2024 KHC 7074) to contend that the execution of the Will has not been proved in accordance with law. The consistent principle flowing from the