JUDGMENT

Dated this the 4th day of July, 2022 A suit for partition ended in dismissal in the trial court based on the finding that the registered Will, Ext.B1 left out by the father Sankara Gupthan with respect to the properties is genuine and valid, against which the plaintiff came up in appeal. Altogether three schedules are there in the plaint as A, B and C. A schedule is the nine items of immovable property. B schedule is the movables and C schedule is the debt, pronote and securities left out by the testator, the father of plaintiff and defendants 2 to 7 and the husband of first defendant. He passed away on 27/4/2001. Ext.B1 is the registered Will dated 26/3/1997, in which the plaintiff was excluded from inheriting the property. The attesting witness examined deposed in tune with the requirement under Section 63 of the Indian Succession Act. Nothing was brought out to discredit his evidence. The document was alleged to have been executed on 26/3/1997 at 3 p.m. at the office of scribe and signed by two attesting witnesses who affixed their respective signatures in the presence of testator. It is also recited in the document. At the time of registration, the testator was introduced before the Registrar by two introducing witnesses who in turn signed on the document for the purpose of registration. The attesting witness, DW1 had given a detailed narration as to its execution touching on every aspect and nothing was brought out to discredit his evidence .

2. What is claimed by the plaintiff in the suit is only 1/8th share over the property. But at the time of the argument, the learned counsel for the appellant submitted that in fact he is entitled to 1/5th share since the property is held by a Hindu Mitakshara family. Ext.A1 is the partition deed entered into by the family in the year 1944, by which, properties were allotted to the family of Sankara Guptan. But going by the document, it is clear that the property held by the family was mixed up with self acquisition of father Sankara Guptan in Ext.A1 partition of the year 1944. When self acquired property was mixed up with the family property in a partition deed, the entire property so mixed up would acquire the character of family property and hence what is allotted to the thaivazhy of Sankara Guptan can only be treated as family property. Since they are governed by Hindu Mitakshara law by birth, each member will get right. Hence, an amendment application was annexed along with the appeal memorandum to raise the abovesaid claim. But it is disputed by the defendants that no such amendment can be permitted unless there is a pleading in the suit. But Ext.A1 partition produced along with the plaint will form part of the pleading. Hence, the proposed amendment is not destructive to the earlier stand and pleading taken by the plaintiff. Further, absence of proper legal advice to the party shall not be a ground to reject the valuable right/title which is evident from the documents produced along with the plaint. The plaintiff by birth will get a right over the property covered by Ext.A1 partition allotted to the thaivazhy of Sankara Guptan. The question of date of birth of defendants 6 and 7 was not taken up or proved in the trial court. As such, a remand of the matter to the trial court cannot be avoided to adjudicate the share of plaintiff and entitlement thereof over the property covered by Ext.A1 partition deed. The decree and judgment of the trial court will stand set aside and the matter is remanded back to the trial court for fresh disposal. The question of devolution of successive interest on the death of mother may also be considered by the trial court. The parties shall appear before the trial court on

03/08/2022.

The appeal will stand allowed in part accordingly.