The will executed by the deceased was duly validated under the Indian Succession Act and established the respondents' title, whereas the appellant failed to prove his entitlement due to inadequate challenge to the will.

JUDGMENT

Annie John, J.

The appellant herein is the plaintiff in O.S.No.260 of 2009 on the file of Additional Subordinate Judge's Court, Palakkad. The suit was filed for partition of the plaint schedule properties. The parties herein are the legal representatives of late Raman, who died on 08.12.2008. The appellant and respondent Nos.2 to 4 are the children of late Raman and the first respondent is his wife, who is the mother of the other parties herein.

2. The suit has been filed by the appellant for partition. The brief facts of the case are as follows:

According to the appellant, the plaint schedule properties viz. item Nos. 1 to 6 were originally belonged to late Raman and his sons viz. the appellant and respondents 2 and 3 herein. In the year 1995, on the strength of Ext.A1, a release deed was executed by the appellant and respondents 2 and 3, in favour of their father, late Raman. Item No.8 in the plaint schedule property was obtained by late Raman through Ext.A2 deed, in the year 1970. Item No.7 in the plaint schedule property was also held by late Raman. After the demise of Raman, the parties herein are entitled to share the same. In spite of repeated demands, respondents 2 and 3 were not willing to effect partition of the plaint schedule properties.

3. Per contra, the respondents contended that item Nos.1 to 7 in the plaint schedule properties were bequeathed to respondents 2 and 3, as per Ext.B1 will executed by the father, late Raman. It was also contended that the plaintiff/appellant had not acquired any right over the plaint schedule properties. Hence, the respondents prayed for dismissal of the suit. It was also contended that item No.8 of the plaint schedule properties is not in existence. Relying on the evidence of PWs 1 and 2, Exts.A1 and A2 and B1 to B10, the lower court dismissed the suit finding that respondents 2 and 3 had obtained title to the properties on the strength of a Will alleged to have executed by their father, late Raman. Aggrieved by the judgment and decree of the lower court, the appellant has preferred this appeal before this Court alleging that the impugned judgment is not sustainable in law.

4. The learned counsel for the appellant argued that the court below ought not to have relied upon Ext.B1 Will, which was not properly executed and it was executed without free will and consent of the executor therein. Further late Raman was aged and was under the custody and control of respondents 2 and 3 on his last stages. The lower court also found that as per Ext.A1 deed, the entire right over the properties was released by the appellant as well as respondents 2 and 3 in favour of the deceased Raman. Not even a single cents of property was left to the appellant as evident from Ext.B1 Will. Ext.B1 will was not proved beyond doubt as the father late Raman was not in a situation to execute the will. The witness to the Will was interested in the affairs of the parties and his evidence could not have relied on by the lower court. Further, item No.8 in the plaint schedule properties is not covered by Ext.B1 Will and the said property was obtained by the father through Ext.A2 and that the court below failed to consider this fact and not mentioned anything about item No.8. He has further argued that the court below ought to have decreed the suit as prayed for and the plaint schedule property shall be partitioned by means of separate sh