Decided on July 07,2003

SUGATHAN Appellant
Premaja Respondents


- (1.) THESE two appeals arc preferred against the Judgment and Decree in O. S. No of 1986 of the Sub Court, Kozhikode. While A. S. No. 645 of 1992 is file by defendants 1 and 2, A. S. No. 740 of 1992 is filed by defendants 4 and 5 The facts of the case are as follows:
(2.) THE suit was filed for partition. Plaintiff is one Cherote Bharathi, According to her, plaint A and B schedule properties belonged to late Cherote Peravakutty. He had three sons and two daughters. The daughter were through his second wife Cherote Sreedhari. According to the plaintiff Cherote Peravakutty executed a Will No. 36 of 1975 by which he excluded his two daughters, defendants 4 and 5 from inheritance. He made provision for payment of monthly allowance of Rs. 100 to his second wife during his lifetime and right of residence in the family house situated in item No. 1 of A schedule to his second wife and two daughters. He bequeathed his properties to his three sons, defendants 1 and 2 and late Sukumaran @ Soman, the husband of the plaintiff. Soman died on 2nd August 1976 and Peravakutty died on 20th October 1975. On the death of Peravakutty his son, Sukumaran took 1/3 share of the properties of Peravakutty. The Will executed by Peravakutty was not questioned by his daughters or his widow and it was acted upon in various proceedings. On the death of Sukumaran, the plaintiff became the full and absolute owner of 1/3 share in the properties of deceased Peravakutty and she was in possession as coowner. Sukumaran had no other heirs except the plaintiff. The plaintiff was remarried on 12th September 1979 and she is now living with her second husband, Sudhakaran. The plaintiff was not given her 1/3 share in the assets of deceased Peravakutty by defendants 1 and 2. Item No. 1 of plaint A schedule property is having an extent of 75 cents with a two storied residential building. Item Nos. 2 and 3 are non residential building in which deceased Peravakutty had tenancy right. The plaintiff and defendants 1 and 2 are entitled to get the properties. Item No. 4 is garden land acquired by deceased Peravakutty and now it belongs to the plaintiff and defendants 1 and 2 as coowners. Defendants 1 and 2 recognised the rights of the plaintiff. Defendants 1 and 2 hired out portion of item Nos. 2 and 3 of A schedule and movables therein to one Ibrahimkutty to run a hotel by name 'SAMCO' as licensee. There are several items of movables, furniture and vessels in item No. 2 and 3 belonging to the testator. Even though the plaintiff demanded for partition, defendants 1 and 2 did not turn up. Hence, the suit was filed. Defendants 1 and 2 filed joint written statement. According to them, it is not correct to say that late Sukumaran took 1/3 share over the properties of late Peravakutty. They further denied that the business, viz, Hotel 'SAMCO' is liable to be partitioned. Late Sukumaran had no interest in the hotel business. The plaintiff married subsequent to the death of Soman. So, she ceased to become entitled to shares of deceased Soman. The plaintiff is not entitled to get any share over the plaint schedule properties. The plaintiff has no possession over the plaint schedule properties. One Subramanian had leasehold right over item 2 and the property was not obtained by Peravakutty as lease. The suit is bad for nor joinder of Subramanian. The movables, furniture and fittings were sold so as to discharge the liabilities of the plaintiff's husband and the amounts realised were utilised for discharging this liability. It is further stated that if the court finds that the properties are liable to be partitioned the house situated in item No. 1 of plaint A schedule property will be reserved in favour of defendants 1 and 2 since they are residing in the building.
(3.) DEFENDANTS 3 to 5 filed separate written statement. They contended that it is incorrect that Peravakutty executed Will. He had not executed any Will on 11th October 1975 or any other date. Peravakutty was not capable of executing any document understanding the tenor of the same. He was suffering from cancer and bedridden and not capable of exercising his mental faculties. He could not read and understand anything. He could not sign the same.;

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