The main legal point established in the judgment is the interpretation and application of Section 90 of the Indian Evidence Act to a 30-year-old Will and the invocation of Order 41 Rule 33 of CPC to rectify errors in the lower courts' decisions.

1. This second appeal is focussed by the defendant, animadverting upon the judgment and decree dated 12.04.2007 passed by the learned Subordinate Judge, Madurantakam in A.S.No.49 of 2006 confirming the judgment and decree dated 25.08.2004 passed by the learned District Munsif, Madurantakam in O.S.No.123 of 1997.

2. The parties are referred to here under according to their litigative status and ranking before the trial Court.

3. A summation and summarisation of the relevant facts absolutely necessary and germane for the disposal of this Second Appeal would run thus:

a] The plaintiff filed the suit seeking the following reliefs:

- to pass a preliminary decree for partition by dividing the suit properties into two equal shares and allotment of one such share by metes and bounds and for separate possession.

- to direct the defendant to pay mesne profits till the date of separate possession.

- to direct the defendant to pay the cost of the suit to plaintiff.

(extracted as such)

b] Written statement was filed by the defendant resisting the suit. Whereupon reply was filed by the plaintiff and additional written statement was filed by the defendant.

c] Whereupon issues were framed. On the side of the plaintiff, he examined himself as P.W.1 and marked Exs.A1 and A2. The defendant/Govindarajan examined himself as D.W.1 along with D.Ws.2 and 3 and marked Exs.B1 to B7.

d] Ultimately the trial court rejected the prayer for partition in respect of items Nos.1 to 3 of Schedule I of the suit properties and in the remaining items of Schedule I and Schedule II and III, the plaintiff and the defendant were allotted half share each.

e] Being aggrieved by and dissatisfied with the said judgment and the preliminary decree, the defendant preferred appeal for nothing but to be dismissed confirming the judgment and preliminary decree of the trial court.

4. Challenging and impugning the judgments and decrees of both the Courts below, this Second Appeal has been filed by the defendant on various grounds, suggesting the following substantial questions of law.

1. Whether the presumption under Section 90 of the Indian Evidence Act is applicable to Exhibit B4, the Will dated 11.06.1954?

2. If the presumption under Section 90 of the Indian Evidence Act is applicable to the Will dated 11.06.1954, when a rejoinder is filed and the said Will is not denied in the rejoinder, is propounder of the Will required to prove the Will under Section 68 of the Indian Evidence Act?

(extracted as such)

5. My learned predecessor while admitting the second appeal, adapted virtually the same, aforesaid substantial questions of law for consideration in this second appeal.

6. After hearing both sides, I am of the view that two other substantial questions of law have to be framed and accordingly it is framed as under:

"3. Whether both the courts below were justified in rejecting the share of the plaintiff in item Nos. 1 to 3 of Schedule I of the suit properties on the only ground that the plaintiff claimed those properties also for partition, that he is the legal heir of Varada Gounder and not as the legal heir of deceased Varada Gounder's deceased daughters, viz., Kuppammal and Vaduvambal and whether by invoking Order 41 Rule 33 of CPC, the error if any committed by the courts below can be rectified as it is being a partition suit, even though separately no appeal was filed by the plaintiff?

4. Whether there is any perversity or illegality in the judgments and decrees of both the courts below?"

Point Nos.1 and 2:

7. The learned counsel for the defendant would advance his argument, which could pithily and precisely be set out thus:

i) Section 90 of the Indian Evidence Act is wide enough to include within its ambit, even the Will of 30 years old and no exception can be carved out of it.

ii) Section 90 of the Indian Evidence Act comes under the caption "Presumption as to documents", which are exception to normal rules contemplated in earlier sections respecting proving of documents. H