A suit for partition decreed by the Trial Court

(Munsiff's Court, Kuthuparamba) in O.S.No.254/1997,

granting 1/11^th share to the plaintiff. It was

modified by the Appellate Court (Addl. Sub Court,

Thalassery) in A.S.No.13/2001, granting 1/5^th share to

the plaintiff, against which the 6^th defendant came up

with this appeal.

2. During the pendency of appeal, the 6^th

defendant passed away. His legal representatives were

in the party array of appeal as respondents 5 to 10,

who are the defendant No.7 to 12 in the Trial Court.

There on the 7^th defendant transposed as additional

appellant and proceeded with the appeal.

3. The property originally belonged to one

Padmanabhan Nambiar, the husband of first defendant.

The plaintiff, 5^th defendant, 6^th defendant and one

late Harimithran are the children born to first

defendant to the deceased Padmanabhan Nambiar.

Admittedly, this property was left out by him at the

time of his death leaving his wife, the first

RSA.No. 1302 of 2004 4

defendant, his children the plaintiff, 5^th defendant,

6^th defendant and late Harimithran as his legal heirs

and successors in interest, as such the plaintiff

claimed 1/5^th share over the property. Harimithran

died intestate. His legal representatives were

impleaded as defendants 2 to 4. The defendant Nos. 7

to 12 are the children of deceased 6^th defendant.

They have claimed one share each claiming that the

property is a 'Thavazhi' property as per the recital

contained in Ext.A1 document, executed by Padmanabhan

Nambiar, in the year 1954. The Trial Court found

that the property is a 'Thavazhi' property based on

the recital contained in Ext.A1 document and granted

a decree upholding the contention of defendants 7 to

12 and found that they are entitled to one share each

by birth, being members of the 'Thavazhi'. It was

confirmed by the First Appellate Court finding that

the property is a 'Thavazhi' property, but the share

was modified finding that the defendants 7 to 12 are

entitled to share being the legal heirs of deceased

6^th defendant. Hence, this second appeal by the 6^th

defendant, after death by the 7^th defendant, one of

the son of 6^th defendant.

RSA.No. 1302 of 2004 5

4. The questions to be addressed in this appeal

are:

1. Whether the Trial Court and the First

Appellate Court justified in construing Ext.A1 as a

document of 'Thavazhi' property?

2. Whether the Courts below justified in holding

the property as 'Thavazhi' property over looking its

self acquisition by the father of plaintiffs?

5. The material dispute involved in this appeal

is with respect to Ext.A1 deed executed by

Padmanabhan Nambiar and its contents. Both the Trial

Court and the First Appellate Court based on the

contents of Ext.A1 document found that the property

is a 'Thavazhi' property. Based on Ext.B1 Will, a

claim was raised that the first defendant had left

out Ext.B1 Will, and by his death, his share devolved

on her. But, both the Trial Court and the First

Appellate Court found that the Will is not genuine,

not executed by the testator. The concurrent findings

rendered by the First Appellate Court and the Trial

Court, regarding the the validity of Ext.B1 Will,

based on the evidence adduced cannot be interfered

with unless there is a warranting reason and no such

RSA.No. 1302 of 2004 6

warranting reason or fatal mistake in the

appreciation of evidence brought to the notice of

this court by advancing any substantial question of

law in that behalf. Hence, deserves no interference

by this court.

6. The material question now available for

consideration is whether the First Appellate Court

and the Trial Court justified in construing Ext.A1

document a registered document of transfer executed

by Padmanabhan Nambiar as a deed showing Thavazhi

property.

7. Ext.A1 covers the property obtained by

Padmanabhan Nambiar as his self acquired property.

There is no much dispute that t