Nellachery Gopalan vs N. Krishnan and Others

N.K. Balakrishnan, J.—The defendant in a suit for partition has challenged the preliminary decree for partition passed by the trial court, which was confirmed in appeal. It was contended by the plaintiffs that the plaint schedule property measuring 10 cents with a house thereon belonged to the plaintiffs and the defendant and they are co-owners. It was stated that the mother of the first plaintiff and the defendant and also the grandmother of plaintiffs 2 and 4 to 6 were having kudikidappu right over the said property. The defendant resisted the suit contending that his mother Kalliani had executed a Will in his favour on 2.3.1991. It was an unregistered Will. Kalliani is the mother of the defendant and the first plaintiff. She died in 1994. Including the defendant Kalliani had four children and so, the plaintiffs sought for division of the property into four equal shares, out of which, the defendant is entitled to get only one share.

Learned counsel for the defendant/appellant has vehemently argued that Ext. B1 Will is a true and genuine Will. The courts below after analysing the evidence found that Ext. B1 could not be proved to be a genuine document. The fact that no reply was sent to the notice which preceded the suit for partition was also taken note of by the courts below to hold that Ext. B1 was subsequently concocted by the appellant to resist the suit for partition. So many suspicious circumstances surrounding the execution of the Will have been pointed out by the courts below to hold that Ext. B1 is not a true and genuine Will. I find no legal infirmity in the finding so entered by the courts below.

It is vehemently argued by the learned counsel for the appellant that the appellant had spent about Rs. 1,50,000/- for renovation of the house situated in the suit property. That was resisted by the plaintiffs/respondents. The respondents claimed reservation of the house in their favour at the time of passing the final decree. It is submitted by the learned counsel for the appellant that there was no justification for reserving the house in favour of the respondents. The evidence given by DWs. 4 and 5 to prove that the house was renovated by the appellant was not accepted by the courts below. In cross-examination it was stated by the witness that he cannot say whether other sharers had contributed for the renovation of the house. The trial court has found, considering the fact that the plaintiffs are the major sharers and the fact that the plaintiffs 3 to 6 are the widow and children of deceased Narayanan, (one of the sons of deceased Kalliani) the plaintiffs should be allotted the house and so, it was reserved in favour of the plaintiffs. Whether the trial court has actually intended reservation of the house without valuation or with valuation or whether the trial court had only intended to allot the house to the plaintiffs by way of equity is not clear from the judgment of the trial court.

The lower appellate court also did not say whether it was actually a case of reservation with valuation or without valuation. It is only found that the defendant is entitled to reservation of the house towards his share. There is nothing in the judgment to show that the house was allotted to the plaintiffs without valuation. Therefore, that is a matter to be gone into in the final decree application. It is submitted by the learned counsel for the appellant that the final decree has already been passed but, according to the learned counsel, no notice was given to the appellant in that application. That is a matter to be agitated before the proper forum. Since it was not stated in the judgments rendered by the courts below that the house was to be allotted to the plaintiffs without valuation it can only be found that the house was to be allotted to the plaintiff with valuation which in effect will be only by way of equity. However, that fact may have to be considered by the court when the final decree is challenged.

Hence, this RSA is dismissed but subject to what has been observed as above.