Decided on February 09,1968

E.ENASU Appellant


- (1.) THE 6th defendant in O. S. No. 14 of 1958 on the file of the Munsiff's Court, chowghat is the appellant.
(2.) THE 1st respondent herein filed the aforesaid suit for partition and separate possession of a half share in plaint schedule items 1 to 5 inclusive of the house situated in item No. 1 and for recovery of (sic) session of plaint items 14 to 16 as belonging to him exclusively. The 6th defendant resisted the suit in so far as it relates to plaint item No. 1 and the building situated therein on the ground that the property had been validly assigned to him under a sale deed, Ext. B-2 executed in his favour by the plaintiff's mother Annamma acting for herself and as guardian of the plaintiff who was then a minor, and by the plaintiff's brother the 2nd defendant who was a major. The Courts below negatived the contentions of the 6th defendant and granted the plaintiff a decree as prayed for. Hence this appeal by the 6th defendant.
(3.) THE plaintiff and defendants 1 to 5 are the children of one Kunhu Vareed by his wife Annamma. The plaint schedule properties admittedly belonged to Kunhu vareed. He died on 19-3-1943 leaving a registered will evidenced by Ext. B-l dated 9-4-1942. The main controversy between the parties is in regard to the interpretation of the provisions contained in this will. It is provided under the will that should Annamma survive the testator she should keep possession of all the properties and enjoy them with full rights and that after her death the properties should go to the testator's children in absolute rights in accordance with the allotment of properties made in the will whereby specific items have been separately earmarked for each of the children. The will contains three schedules of which the A schedule consists of 19 items of immovable properties owned by the testator, the B schedule of 3 items of outstandings which the testator had to realise from others and the C schedule mentions one item of debt due by the testator which stood charged on item No. 10 in the A schedule. It is not necessary for the purpose of this second appeal to go into the details of the allotment of immovable properties made under the will as amongst the testator's children.;

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