HIGH COURT OF KERALA
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(1.) The defendants in O.S.No.278/1987 on the file of the Munsiff Court, Muvattupuzha, who were the appellants in A.S.No. 168/1990 of the Sub Court, Muvattupuzha are the appellants herein. The plaintiffs filed the suit for partition and separate possession of 1 acre and 6 cents of property comprised in Survey No.535/5 / 2 and 482/1 of Enanalloor Village. As per the plaintiffs, the plaint schedule property belonged to one Itta, the husband of the first appellant, who dies intestate in the year 1975. The appellants and the respondents are legal heirs of deceased Itta and they are coowners of the property. The 2nd appellant filed O.S.No.326/1987 against respondents 1 and 2 for prohibitory injunction and they are entitled to 3/7 share in the suit property. So the suit is filed for partition and separate possession with mesne profits. The appellants contended that the plaintiffs are not entitled to get partition of the plaint schedule property. They are the daughters of Itta, who were given away in marriage in the kudivaippu form after giving ornaments and Sthreedhanam and they have no share in the property. On 11-7-1974, deceased Itta executed a will bequeathing the plaint schedule property to the 2nd appellant, who is in exclusive possession and enjoyment of the property with knowledge of the respondents ousting them and the right if any of the respondents is barred by adverse possession and limitation. The Trial Court negatived the contention of the appellants and found that the property is partible and accordingly a preliminary decree for partition was passed. The appellate Court confirmed the decree and judgment of the Trial Court and dismissed the appeal. Against the said judgment and decree, this Second appeal is filed.
(2.) The questions formulated in this appeal are:
(i) Whether the will alleged to be executed by Itta is properly proved
(ii) If there is no joint possession will it not amount to ouster of possession of the parties, who are coowners in the property
(3.) There is no dispute with regard to the fact that the plaint schedule property originally belonged to one Itta, husband of the first defendant and father of defendants 2 and 3 and plaintiffs 3 and 4. Plaintiffs 1 and 2 are the children of Itta's deceased son Krishnankutty and plaintiffs 5 to 7 are the children of Itta's deceased daughter Narayani. As per the plaintiff, Itta died intestate and after his death, the property devolved on the plaintiffs and the defendants. While so the 2nd defendant filed O.S.No.326/1987 for a prohibitory injunction restraining the plaintiffs from trespassing into the plaint schedule property alleging that the plaint schedule property belongs to him by virtue of a will executed by Itta. The genuineness of the will is challenged by the plaintiffs. The contention of the defendants is that the daughters of Itta were given in marriage in kudivaippu from
giving Sthreedhanam and ornaments and therefore, they are not entitled to any share over the plaint schedule property. The further contention is that during the lifetime of Itta, he had executed Ext. A1 will bequeathing the entire property to 2nd defendant. So he has become the sole legatee under the will and the plaintiffs are not entitled to get any share over the property.;
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