The main legal point established in the judgment is that the execution of a Will can be proved under Sec. 69 of the Indian Evidence Act based on a contemporaneous admission, and examination of an attesting witness to a Will is unnecessary when the execution of the Will has not been specifically denied.

This Second Appeal is preferred against the concurrent findings of Courts below decreeing Plaintiffs suit for Permanent Injunction. Unsuccessful Defendants 1 and 2 are Appellants. Respondents 2 and 3 are Defendants 3 and 4 in the suit. For convenience, the parties are referred as per their array in the suit.

.2. Parties are related as under:- |

.| |

Akilandam Elumalai

=Ramasamy Naicker |

| |

---------------------- Purushothaman

| | [Plaintiff]

Bakthavachalu Ayyavu

Naicker (D3)

[Died on 210. 94]

|

Karpagam (D1)

=Pachaiyappan (D2)

3. Suit property items 1 and 2 originally belonged to one Bakthavatchalu Naicker and he was looked after by Plaintiff and his family for nearly 20 years prior to his death. While in a sound disposing state of mind Bakthavatchalu Naicker executed Ex.A1 Will [28. 1987] giving life interest to Plaintiff and vested remainder to Plaintiffs son. Testator Bakthavatchalu Naicker died on 210. 1994. Suit item No.3 was purchased by Plaintiff from 1st Defendant and thus Plaintiff is in exclusive possession and enjoyment of suit items. Case of Plaintiff is that Plaintiff was in enjoyment of suit properties even during the life time of Bakthavatchalu Naicker and Plaintiff was rendering active help in cultivation of lands. 1st Defendant had filed O.S.No.357/1994 against Bakthavatchalu Naicker and others. Further case of Plaintiff is that Defendants are envious that Bakthavatchalu Naicker has given away his properties to Plaintiffs sons and inimical towards Plaintiff and are trying to dispossesses the Plaintiff and hence the suit for Permanent Injunction.

.4. Resisting the suit, Defendants filed written statement denying execution of Will by Bakthavatchalu Naicker. First Defendant had also denied title of Plaintiff in respect of item No.3. Defendants further stated that 1st Defendant is the exclusive owner and is in possession of suit properties and that Plaintiff is trying to take forcible possession under the pretext of suit and prayed for dismissal of suit.

5. On the above pleadings, six Issues were framed. On the side of Plaintiff, Plaintiff himself examined as PW1 and Exs.A1 to A9 were marked. On the side of Defendants, DWs.1 to 4 were examined and no documents were marked.

6. Upon consideration of oral and documentary evidence, trial Court held that possession follows title and held that Plaintiff presumed to be in lawful possession. In so far as item No.3, trial Court held that non-passing of consideration was not proved by 1st Defendant. Pointing out admission of DW1 as to signature of Bakthavatchalu Naicker in Ex.A1 Will, trial Court held that Ex.A1 Will is a valid, genuine and enforceable and binding upon Defendants. Holding that possession follows title, trial Court decreed Plaintiffs suit for Permanent Injunction.

7. Being aggrieved by decreeing of suit, Defendants filed A.S.No.55/2004 on the file of Sub-Court, Tiruvallur. Pointing out admission of DW1 as to signature of Bakthavatchalu Naicker in Ex.A1 Will and evidence of DW1, lower Appellate Court held that Ex.A1 Will is true and genuine. In so far as item No.3, lower Appellate Court held that Plaintiff had purchased the same under sale deed. Finding that Plaintiff is in possession and enjoyment of suit item Nos. 1 to 3, lower Appellate Court confirmed findings of trial Court and dismissed the appeal preferred by Defendants.

8. Challenging the concurrent findings of Courts below, Defendants 1 and 2 have filed this Second Appeal. Second Appeal was admitted on the following substantial questions of law:-

1. Whether the Lower Appellate Court is right in upholding Ex.A1 in the absence of proof and evidence by examination of attestors or persons conversant with their signature?

2. Whether the Lower Appellate Court is right in confirming the judgment of the Trial Court without appreciating the relevance of "koorchit" which proves the partitioning of the suit property among the sharers and lack of title in Baktavatsalu?

9. Mr.V.Raghavachari,