AI Structured Summary
Not yet generated for this judgment
Judgment
Sathish Ninan, J
R.F.A. No.404 of 2012 arises from the preliminary decree in a suit for partition. R.F.A. No.652 of 2013 is filed challenging the dismissal of a suit for prohibitory injunction. It relates to one of the items in the suit for partition. The appellant in these appeals is the plaintiff in both the suits.
The plaintiff and the defendants are the children of late Achutha Prabhu and late Rugma Bai. Plaint ‘A’ schedule are movables, and plaint ‘B’ schedule are immovable properties. In these appeals we are concerned only with the ‘B’ schedule immovable properties.
According to the plaintiff, the plaint 'B' schedule immovable properties which consists of six items, belonged to the mother. With regard to 'B' schedule item no.6, as per the title deed Ext.A1, the mother Rugma Bai had only a life interest and the property belonged in equal shares to the plaintiff and defendants 2 and 3. The mother Rugma Bai expired on 14.11.2006. The suit has been filed claiming partition of ¼ shares over plaint ‘B’ schedule item Nos.1 to 5, and 1/3 shares over ‘B’ schedule item No.6.
The subject matter in R.F.A. No.652 of 2013 viz. the suit for injunction, is only the ‘B’ schedule item No.6 referred to above.
The first defendant challenged the claim for partition. It was contended that their mother Rugma Bai had executed Ext.B1 Will dated 23.01.1999 followed by Ext.B2 codicil dated 23.11.2002 bequeathing her properties. It was contended that, as per Ext.B1 and B2, the plaint ‘B’ schedule items 4 to 6 are not partible.
The trial court upheld Ext.B1 Will and Ext.B2 Codicil and passed a preliminary decree in terms thereof.
We have heard the learned counsel on either side.
The points that arises for determination are :-
(i) Is the finding of the trial court regarding the genuineness of Ext.B1 Will and Ext.B2 Codicil sustainable on the evidence ?
(ii) Is the finding of the trial court that the testator Rugma Bai had absolute right over plaint 'B' schedule item No.6 property, sustainable ?
With regard to the proof of Ext.B1 Will and Ext.B2 Codicil, one of the witnesses each, in Exts.B1 and B2, were examined as DWs.2 and 3 respectively. A reading of their evidence shows that the requirements under Section 68 of the Indian Evidence Act, read with Section 63(c) of the Indian Succession Act, have been duly satisfied. They have deposed about the due execution and attestation of the Will and the Codicil. The trial court has elaborately considered the oral evidence on record and found the witnesses to be reliable and their evidence to be acceptable. The appellant was unable to point out any circumstance to discredit the witnesses. We do not find any reason to disagree with the finding of the trial court. The findings of the trial court with regard to the genuineness and proof of Ext.B1 Will and Ext.B2 Codicil are only to be affirmed. Point No.1 is answered accordingly.
Regarding plaint 'B' schedule item No.6, it is the contention of the appellant that the property originally belonged to their maternal grandfather. He had executed Ext.A1 Gift Deed of the year 1954 whereunder the property was gifted to the plaintiff and defendants 2 and 3 with a life interest to Rugma Bai (the mother). It is accordingly that the plaintiff claims 1/3 share.
Ext.B8 is a Partition Deed dated 24.05.1972 executed between Rugma Bai (the mother) and the plaintiff and the defendants (the children). In the said partition, the properties dealt with therein are stated to be obtained under Ext.A1 Gift Deed of the year 1954 noted above and those obtained under the final decree in a suit for partition viz. OS 241/1958. The parties to Ext.B8, including the plaintiff herein, having taken note of the recitals in Ext.A1 Gift Deed agreed to divide the properties dealt with therein also and to allot the plaint ‘B’ schedule item No.6 herein, exclusively and absolutely to the mother Rugma Bai. There is nothing illegal in the parties, who are co-owners of the property, giving the property to one among them (the mother), with absolute and full ownership, even though as per the prior title viz. Ext.A1 she had only a life interest. As noticed, all the parties, including the plaintiff, had voluntarily made the arrangement under Ext.B8. Ext.B8 is a registered Deed and is valid. There is no challenge against Ext.B8 partition. The contention of the plaintiff that the terms of Ext.A1 gift will survive even after Ext.B8 partition, has no force.
The trial court was right in having held that Ext.B8 Partition Deed binds the parties including the plaintiff. Under Exts.B1 and B2, the plaint item No.6 in the 'B' schedule was bequeathed in favour of the first defendant. Exts.B1 and B2 having already been upheld, the said property belongs absolutely to the first defendant. So also, as per Exts. B1 and B2, the plaintiff does not have any right over the plaint ‘B’ schedule items 4 and 5 also. Therefore, the claim for partition over plaint ‘B’ schedule items 4 to 6 was rightly declined by the trial court. Point No.(ii) is answered accordingly.
Having held that the plaintiff does not have any right over plaint item No.6 described in the 'B' schedule in the suit for partition, which is the plaint schedule property in the suit for prohibitory injunction, the trial court was right in having declined the relief of injunction.
No other contentions are urged. The decree and judgment of the trial court warrant no interference.
Resultantly, the appeals fail and are dismissed. No costs.