~ ~ ~ ~ ~ ~ ~ ~ ~ Late Bhagavathy Amma Ponnamma had three children namely Venugopalan Nair, Sarojini Amma, the 1st defendant, and Syamalakumari, the 4th defendant in O.S. No.589/1995 of the Subordinate Judge's Court, Thiruvananthapuram. Late Bhagavathy Amma Ponnamma had 60 cents of property as her own for which she had executed Ext.A1 Will thereby bequeathing 40 cents out of which, jointly in favour of the 1st defendant and her two daughters who are defendants 2 and 3, 10 cents to Venugopalan Nair and 10 cents to Syamalakumari, the 4th defendant. Bhagavathy Amma Ponnamma died in the year 1966. Later, Venugopalan Nair died in the year 1989 leaving the plaintiffs as his only legal heirs. The 1st plaintiff is his wife and plaintiffs 2 and 3 are her daughters. Even though 10 cents of property was bequeathed to Venugopalan Nair, that portion of the property or the other portions bequeathed to defendants 1 to 3 and the 4th defendant were not separately demarcated. The whole property remained contiguous from which defendants 1 to 3 have exercised their right of selling away the entire extent of 40 cents allotted to them to strangers. It seems that subsequently the 4th defendant also died leaving additional defendants 7 to 10 as her legal heirs. It seems that the property bequeathed to the 4th defendant has also been sold to strangers. The present appellant is the son of the 4th defendant, who is impleaded as the additional 7th defendant. It seems that in 2005 he had sold away his share over the property allotted to the 4th defendant. 2. Even though the plaintiffs were running from pillar to post to get the property bequeathed to Venugopalan Nair separately identified and for separate possession, the other defendants were not willing. Consequently, the plaintiffs filed O.S. No.589/1995 before the Subordinate Judge's Court, Thiruvananthapuram as a suit for partition and separate possession.
3. The suit was initially contested by the 3rd defendant alone. All the other defendants including the 4th defendant under whom the present appellant is claiming also remained ex parte. The 3rd defendant filed a written statement admitting the relationship of the parties; but by making a stray contention that Venugopalan Nair to whom 10 cents of property was bequeathed, had sold the property to the 4th defendant. Strangely enough, the 4th defendant had no such case that she had purchased the said property from Venugopalan Nair.
4. Initially, the court below had chosen to dismiss the suit on the ground that the court fee paid was not sufficient. As it had suffered from gross illegality, the plaintiffs had approached this Court through A.S.
No.476/2001. Before this Court, it was argued that the Will was not produced. By the time, the plaintiffs could procure Ext.A1 copy of the Will, and they produced it before this Court in the appeal along with I.A. No.2531/2005. This Court identified that the only dispute among the parties is as to whether the properties bequeathed were divided and allotted as separate plots or not. It seems that the present appellant had contested the appeal. Even though his mother had no such case, he took up the very same contention resorted to by the 3rd defendant that the 10 cents bequeathed by Bhagavathy Amma Ponnamma to Venugopalan Nair was sold to the 4th defendant by Venugopalan Nair. This Court allowed the appeal by setting aside the judgment and decree passed by the court below and remitted the matter to the court below for fresh disposal in accordance with law, after giving a reasonable opportunity to both sides to adduce evidence. It seems that the main question to be decided by the court below as directed by this Court in judgment dated 04.07.2007 in A.S. No.476/2001 was whether the allotment of property as per the Will was in specific plots or only rights alone. The operative portion of the judgment shows that it was an open remand and it was made clear that the 7th defendant, who is the present appellant, can contest the case and adduce evidence, oral and documentary. Considering that the suit was very old, the court below was directed to dispose of the suit within a specific time frame of five months.
5. The appellant had chosen to file a written statement before the court below by resorting to contentions which his mother had not cared to raise. He has gone to the extent of contending that Venugopalan Nair is not the son of Bhagavathy Amma Ponnamma and also that the plaintiffs are total strangers to the family. It is contended that the plaintiffs have no relationship with the said Venugopalan Nair. At the same time, the fact that Bhagavathy Amma Ponnamma had executed Ext.A1 Will bequeathing 40 cents of property to defendants 1 to 3, 10 cents of property to Venugopalan Nair and 10 cents of property to the 4th defendant, is admitted. It seems that when the suit again came up for evidence before the court below, the plaintiffs had to examine PW1 and PW2 and to prove Exts.A1 to A10 series. On the side of the appellant, Ext.B1 was proved and no witnesses were examined. It seems that PW1 and PW2 were cross examined for and on behalf of the appellant. At the same time, the appellant contended that as he was working at Madras, he had to be given an opportunity to adduce evidence and to produce and prove a patta obtained by the 4th defendant in respect of the property bequeathed to Venugopalan Nair as per the Will. The appellant also wanted to examine the Tahsildar who had issued the said patta. As the suit had to be disposed of within the specific time frame stipulated by this Court, the court below did not grant any further adjournment. The court below, through the impugned judgment, allowed the claim of the plaintiffs and passed a preliminary decree. It is aggrieved by the said judgment and decree, the present appeal has been filed by the additional 7th defendant.
6. Heard the learned counsel for the appellant Sri.N.Nagaresh and the learned counsel for respondents 1 to 3 Sri.G.S.Reghunath. Other respondents are not contesting.
7. The matter is so simple that it could have been disposed of years back. It seems that unnecessarily the matter has been protracted and the poor plaintiffs are denied a decree from 1995 onwards. By this time, almost all the other portions of the properties were sold out to various strangers. Presently, an extent of 10 cents alone is available in the whole property belong to Bhagavathy Amma Ponnamma. It seems that she had only one son namely Venugopalan Nair, who died leaving the plaintiffs, who are respondents 1 to 3, alone as his legal heirs. It seems that after about 13 years of the filing of the suit, the 1st plaintiff, the widow of Venugopalan Nair was put to the task of proving that she was given in marriage to Venugopalan Nair, and that the said Venugopalan Nair is the son of Bhagavathy Amma Ponnamma, even though those facts were specifically admitted by the 3rd defendant, who is one of the daughters of the 1st defendant. Even the 4th defendant, who is the mother of the present appellant, had no contention that Venugopolan Nair was not the son of Bhagavathy Amma Ponnamma or the plaintiffs were not the wife and children of Venugopalan Nair. PW2, who had the fortune of attending the marriage of Venugopalan Nair and the 1st defendant, had to be traced out and examined by the plaintiffs to prove that the 1st plaintiff is the legally wedded wife of Venugopalan Nair. Again, PW1, who is that unfortunate wife, was put to the task of proving the paternity of her children. All those things clearly stand proved now. There is no challenge with regard to the said aspects at present.
8. The only argument forwarded by the learned counsel for the appellant is that the appellant was not given an opportunity by the court below to prove the patta produced by the appellant and also to examine the Tahsildar who had allegedly issued the said patta. The learned counsel for respondents 1 to 3 has produced the copy of the said patta allegedly obtained by the 4th defendant. It has to be noted that the 4th defendant has no case that she had obtained any patta in respect of property bequeathed to Venugopalan Nair or that she had purchased the said property from Venugopalan Nair. When the 4th defendant, under whom the appellant is forwarding a claim had no such contention, the appellant cannot be heard to say that the 4th defendant had purchased the property and thereafter obtained a patta. In fact, all the parties, other than respondents 1 to 3, are estopped from contending the validity of Ext.A1 Will and contents thereof. They cannot approbate and reprobate. It seems that all of them including the present appellant had sold away properties covered by the Will. They cannot contend that no properties were bequeathed to Venugopalan Nair through the Will. When it clearly stands proved that respondents 1 to 3 are the legal heirs of deceased Venugopalan Nair, respondents 1 to 3 are lawfully entitled to forward all the claims over the property bequeathed to Venugopalan Nair. When Ext.A1 Will stands proved and admitted by all the parties, it stands proved that 10 cents of property was bequeathed to Venugopalan Nair, and respondents 1 to 3 herein are entitled to succeed to the said estate of Venugopalan Nair.
9. Even though the appellant also claims that the 10 cents of property bequeathed to Venugopalan Nair was purchased by the 4th defendant, no documents are produced. It seems that it was a stray contention resorted to by the 3rd defendant alone, which has been presently adopted by the appellant. Presently, the 3rd defendant also has no such contention. In the absence of any document to prove that Venugopalan Nair had sold out the property to the 4th defendant or the 4th defendant had purchased the property from Venugopalan Nair, any patta allegedly obtained does not have any bearing at all. It seems that a period of 5 months was granted by this Court to take up all those contentions and to adduce evidence. Having not chosen to do so in time, the appellant has now come up with the appeal clamouring that he was not given sufficient opportunity to contest the suit. The matter was unnecessarily being dragged from 1995 onwards. All the other parties, except respondents 1 to 3, having chosen to dispose of all the remaining portions of their properties covered by the Will, are now attempting through the present appellant to snatch away the fruit of the litigation from respondents 1 to 3. There is no merit in the appeal. Any further remand of the matter as prayed for by the appellant will be sheer wastage of judicial hours and the denial of the fruit of this litigation to the poor plaintiffs. There is no bona fides on the part of the appellant in preferring this appeal. This appeal is merely meant for causing unnecessary vexation and delay. Matters being so, the appeal is only to be dismissed with compensatory costs, and I do so.
In the result, this appeal is dismissed with compensatory costs of ₹3,000/- to be paid by the appellant to respondents 1 to 3. The court below is directed to expedite the proceedings and pass the final decree at the earliest.
Sd/-
(B.KEMAL PASHA, JUDGE) aks/12/06 // True Copy // PA to Judge