A.V. Ramakrishna Pillai, J.
Taking exception to the preliminary decree in the original suit for partition, defendants 7 and 41 have come up before us with this appeal.
2. As per the plaint allegations, the suit property having an extent of 30 cents situated in Sy.No.373/3 of Thoravu Village belonged to Chevidan Chakku as per Ext.A1. Chevidan Chakku died on 26.05.1950 leaving two sons by name, Antony and Mathew, and three daughters by name, Mathiri, Thressia and Kochumariyam. The 1st plaintiff in the suit is the third wife of the aforesaid Antony, who is no more. Defendants 1 to 3 are the children of the aforesaid Antony through his 1st wife. The 2nd plaintiff as well as defendants 4 to 7 and 33 are the children of aforesaid Antony through his second wife. During the pendency of the suit, the 1st defendant died and his legal representatives were impleaded as defendants 35 to 44. The 2nd defendant also died and his legal representatives were impleaded as defendants 27 to 32.
3. In the plaint, the plaintiffs claimed that on the death of Chevidan Chakku, his property devolved on his widow, sons and daughters; and his daughters have no share in the property and the plaint property has not been partitioned between his two sons, Antony and Mathew. It was also alleged that defendants 1 to 7, who are residing in the aforesaid property, have put up new constructions. Therefore, the plaintiffs sought for a partition.
4. In the written statement filed by defendants 1 and 7, they have contended that on the death of Antony on 15.09.1975, his share did not devolve on his legal heirs as contended. They contended that defendants 1 and 7 were in possession of the plaint schedule property and the 7th defendant with his family is residing in the main building situated in the plaint schedule property. They further contended that the front portion of the building, where they were residing, was demolished and a terraced building was constructed spending more than Rs.1,00,000/-; and the 7th defendant is conducting a rice shop in one of the rooms in the said building. It was further contended that the 1st defendant with his family is residing in a building situated on the eastern side of the main building and his children are conducting a studio there, investing a sum of Rs.45,000/-. They have further contended that the plaintiffs and the other members of the family were fully aware of the said fact and they did not object to the construction of the building and there was no objection from the plaintiffs against the same. It was further contended that defendants 1 and 7 are in peaceful possession and enjoyment of the property without interruption since 1975; and the right, if any, of the plaintiffs and other defendants has been lost by adverse possession, ouster and abandonment. It was further contended that as per Ext.B24, the 1st defendant assigned his right over the property in favour of the 2nd appellant.
5. Defendants 3, 5, 6, 7, 10 to 12, 13 to 18, 27, 30 and 31 filed separate written statements and contested the suit.
6. The trial court, after raising proper issues for trial, permitted the parties to go for trial. On the side of the plaintiffs, PWs 1 to 5 were examined and Exts.A1 to A5 were marked. On the side of the defendants, DWs 1 to 7 were examined and Exts.B1 to B26 were marked.
Exts.X1 to X5 were also marked as court exhibits. The trial court, after considering the evidence, held that the defendants have not furnished much data to prove their hostile animus; and thus, there is no ouster; and therefore, the plaint schedule property is liable to be partitioned. It is against the said finding, this appeal is filed.
7. Arguments have been heard.
8. Admittedly, the suit property originally belonged to Chevidan Chakku by virtue of Ext.A1, who died on 26.05.1950. The plaintiffs allege that they belonged to catholic community of Puthukkad area in Thrissur District; and they, along with defendants, were in joint possession of Chevidan Chakku's property and all are governed by the provisions contained in the Indian Succession Act.
9. The trial court, while considering issue nos.6 and 13, went into the question regarding the genuineness of Ext.B5 executed by Mathew, the son of Chevidan Chakku, in favour of the 8th defendant, Kochanthony. Ext.B5 Will was produced by the 7th defendant, who was examined as DW2. His case is that Mathew, who is son of Chevidan Chakku, executed Ext.B5 Will in favour of the 8th defendant. Ext.B5 was proved by PW3. What the 8th defendant assigned as per Ext.B5 Will, has been released in favour of the 2nd plaintiff as well as defendants 1, 2, 5, 6 and 7 as per Ext.B6 release deed. The trial court found that Ext.B5 Will is genuine and the appellants are not challenging the same.
10. The trial court also considered the question whether the female children of Chevidan Chakku, i.e., late Mathiry, Thressia (9th defendant) and late Kochumariyam, are entitled to any share. We see the discussion on this issue in para 24 of the impugned judgment. This issue happened to be raised as the 1st and 7th defendants took a contention that all the necessary parties have not been included in the array of parties. On impleadment, the legal heirs of the female children of Chevidan Chakku have also claimed share over the property of Chevidan Chakku. It is an admitted fact that the parties belonged to Christan religion. The plaintiffs contended that the female children of Chevidan Chakku, viz., Mathiry, Thressia and Kochumariyam, are not entitled to inherit share in view of Section 22 laid down in the Cochin Christian Succession Act, which reads as follows;
“Notwithstanding anything in the foregoing provisions of this Act, when Streedhanam has been given or contracted to be given by the father, mother, paternal grandfather or the paternal grandmother, of a woman, to or in trust for her, neither the said woman nor any lineal descendant of hers as such, shall be entitled to a distributive share in the property of any of them dying intestate, if (1) a brother of the said woman, being a lineal descendant of the intestate, or (2) the lineal descendants of such a brother, survive the intestate.”
11. The plaintiffs relied on Exts.X1 and X2 documents to show that Streedhanam was given at the time of the marriage of the three daughters referred to above and therefore, none of the female children of Chevidan Chakku are entitled to get share over the property. The defendants 10 to 12 contended that Exts.X1 and X2 revealed only Streedhanam and no presumption can be drawn to arrive at a conclusion that Streedhanam was actually given at the time of marriage of the three daughters. It was contended by those defendants that no witnesses were examined to prove that Sthreedhanam was actually given by any of the four relatives specified under Section 22 of the Act. The trial court, after examining Exts.X1 and X2, found that even if no witnesses were examined, Exts.X1 and X2, being old documents, can be relied on and it can be presumed that without paying Streedhanam, church will not fix and record the factum of Streedhanam in their register. The trial court also found that it will not be possible to get witnesses, who had attained majority at the time of the marriage of the female children of Chevidan Chakku in 1928 and 1938. Therefore, relying on Exts.X1 & X2 and finding that the church had dominance in the Christian society during old days, the trial court came to the conclusion that the three daughters are not entitled to get any share of the deceased Chevidan Chakku. We see no reason to interfere with this finding.
12. The main grievance projected by the learned counsel for the appellants is regarding the finding of the trial court in respect of Ext.A2 Will dated 16.05.1991 executed by the 1st plaintiff, Mariyam, who is the third wife of Antony, on 16.05.1991 in favour of the 2nd plaintiff, Dominigose. According to the plaintiffs, Ext.A2 Will was executed by the 1st plaintiff, Mariyam, who is the third wife of Antony, as she did not have any issues. Ext.A2 Will was proved through PW4, who is the attesting witness. He testified that he had seen the executant of Ext.A2 so many times before the execution of the Will.
The person, who identified the executant of Ext.A2 before the Registrar, was examined as PW5. He testified that he is familiar with the 1st plaintiff. The trial court found no reason to disbelieve the testimony of the witnesses and found that Ext.A2 Will was genuine and duly executed by the 1st plaintiff, Mariyam, and accepted the same. Though it was contended by defendants 1 to 7 that no probate is obtained for the above Will, the trial court found that the necessity of getting probate or letters of administration has to be decided with reference to the time when the right as execution as legatee is sought to be established. The trial court, relying on the decision in Cherichi v. Ittanam [2001 (1) KLT 415], observed that the law applicable at that time shall be taken into consideration so that the date of execution of Will on the date of commencement of proceedings in court are not relevant. The trial court also observed that the 1st plaintiff, in her plaint, has also supported the execution of her Will; and therefore, there is no reason to disbelieve the genuineness of Ext.A2.
13. Challenging the genuineness of the Will, the learned counsel for the appellants would argue that there is no pleading in the plaint regarding the execution of Ext.A2 Will and it came into light only when PW2, who is the 2nd plaintiff, came for evidence in chief examination on 22.11.2001. We are of the view that it is not a sufficient reason to disbelieve the genuineness of Ext.A2.
14. It was further argued by the learned counsel for the appellants that there was no positive finding by the court below that Ext.A2 Will has been duly attested and executed as required under Section 63 of the Succession Act. It is true that in para 26 of the impugned judgment, though the trial court has not expressed, in vivid terms, that Ext.A2 Will has been duly attested and executed under Section 63 of the Succession Act, it can be seen that the testimony of the witnesses were properly appreciated by the trial court and has come to the conclusion that there is nothing to disbelieve the execution of Ext.A2 Will. In spite of the persuasive submissions made by the learned counsel for the appellants, we are of the view the finding of the trial court upholding Ext.A2 Will, is only to be upheld.
15. There was yet another contention by the appellants that the title, if any, of the plaintiffs to the suit property is lost by adverse possession, limitation and ouster. The trial court has addressed this contention while answering issue nos.4 and 14. It is true that the property is in the possession of defendants 1 and 7 and they are residing there and conducting business after the death of their father, Antony in 1975. The reason that the said defendants are residing in the property, will not help them to establish that the appellants were ousted from possession. To prove their case, DWs 2 and 3 were examined on the side of the appellants. DW2 stated that there was a move for partition under the mediation of one Antony; and accordingly, Ext.B7 was executed by some of the members of the family of Chevidan Chakku. Therefore, the trial court found that, that would cut the very root of the case of the defendants that they have perfected title by adverse possession. Ext.B7 would go to show that on the date of execution of that document, the members of the family of Chevidan Chakku were in joint possession of their family property. As rightly pointed out by the trial court, sufficient plea is lacking in the written statement of defendants 1 and 7 to show that their possession had become adverse. As the evidence was correctly appreciated by the trial court while arriving at the conclusion against the appellants regarding the issue of adverse possession, ouster and abandonment, we are of the view that the scope of interference of this Court in this appeal is little.
16. It was inter alia pointed out by the learned counsel for the appellants that the quantum of share allotted by the trial court to defendants 45, 46, 47 and 48 are incorrect. Defendants 45, 46, 47 and 48 are the legal heirs of 8th defendant, Kochanthony, who died on 31.08.2012. Thressia, who is the daughter of late Chevidan Chakku will get one share of her mother, Annamma. When Thressia died, her share devolved upon her children, viz., Jacob (19th defendant) and Elsy (20th defendant). Admittedly, Kochanthony, as per Ext.B6 dated 17.12.1996, released his right, which he obtained over the property of his mother, in favour of the 2nd plaintiff as well as defendants 1, 2, 5, 6 and 7. Therefore, Kochanthony has no right over the share of his mother. Therefore, defendants 45, 46, 47 and 48 will not get any share of Kochanthony, which he got from his mother. Therefore, we are of the view that the share now allotted by the trial court has to be recalculated. However, we are of the definite view that this can be relegated to be decided at the final decree stage.
17. It was further argued by the learned counsel for the appellants that if this Court finds that the suit property is partible as found by the trial court, the building be allotted to the person in possession subject to equities and ovelty payment. We are not expressing any opinion on the said submission and we are relegating this question also to be decided by the trial court at the final decree stage.
In the result, we uphold the finding of the court below that the property is partible by metes and bounds. However, we hold that defendants 45, 46, 47 and 48 are not entitled to any share in the suit property and the shares are to be reallocated, which can be done at the final decree stage.
The question as to whether the building to be allocated to the persons in possession, is left open to be considered by the trial court in final decree proceedings. It shall be open to the plaintiffs to approach the trial court with the preliminary decree application within a period of one month.
The entire trial court records shall be transmitted back to the trial court without delay.
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T.R. RAMACHANDRAN NAIR, JUDGE.
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A.V. RAMAKRISHNA PILLAI, JUDGE.
The words 'preliminary decree' occurring in the last sentence in the last but one paragraph of the judgment dated 28.10.2014 in A.S. No.559/2002 are corrected and substituted by the words 'final decree', vide order dated 06.02.2015 in A.S. No.559/2002.
Sd/- Registrar (Judicial)