Court held the will true but not valid.

RAMAPRASADA RAO, J.

1. The first and second defendants in O.S. No. 6 of 1968 on the file of the Subordinate Judge of Madurai are the appellants.

2. One Kuppai Pitchai Rowther originally owned certain properties which were admittedly brought to public sale. In that public sale, his own son through his first wife, Seem Rowther, the husband of the first defendant participated and purchased certain of those properties which are the subject matter of the present litigation. It is common ground that under Ex. A-8 Seeni Rowther purchased the suit properties and became the absolute owner thereof. Seeni Rowther died without children but leaving a will Ex. B-1, d. 23rd June 1955. Under the will, he created a life interest in favour of his wife, namely, the first defendant and disposed of the remainder in favour of he second defendant who was his sisters son. The absolute remainder having thus been secured by the second defendant and a life estate by his widow under the Will Ex B-1, the question arose whether Seeni Rowther did have the requisite capacity to execute the Will Ex.B-1, and ev en if he did, whether he could make the dispositions in the manner stated. The first plaintiff is the brother of Seeni Rowther. Claiming to be one of the heirs of Seeni Rowther, he along with Sheik Mohammed Rowther examined as P W.2 in the case issued the suit notices Exs. A-1 and A-4 claiming that as heirs of Seeni Rowther they would be entitled to th of the estate which Seeni Rowther left and that the first defendant, if at all, would only be entitled to a th share therein. They would ignore the Wil l Ex. B-1 not only on the ground that Seeni Rowther did not have the requisite capacity to execute the will but the dispositions under the will ran counter to the personal law of the parties. The first plaintiff in his turn under Ex. A-9 settled the share which he would obtain as heir of Seeni Rowther in favour of the second plaintiff, and it is in this context that the second plaintiff also has been brought on record along with the first plaintiff. The plaintiffs case is that they are entitled to sepa rate possession of a the share of the estate of Seeni Rowther and that the first defendant would be entitled to the remaining th share. The third and fourth defendants are the tenants occupying the suit property in question. On the death of the first plaintiff pendente lite , defendants 5 to 8 were brought on record as his legal representatives. On the basis of the above claim, as is seen from the pleadings, the plaintiffs instituted the present action. Defendants 3, 4 and 6 remained ex parte.

3. According to the contesting defendants (who will hereafter be referred to as ‘defendants), Ex. B-1 has been validly executed and is a true and enforceable document and it has to be understood as a family arrangement deed. The first defendant would claim a life interest over the property and the second defendant, the vested remainder therein, as per the recitals in Ex. B-1.

4. The parties went to trial on the above material pleadings, over which the following issues were framed:

[The issues are omitted as unnecessary—Ed.]

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5. The learned Judge held that Exs.B.1 and A-9 are true but not valid as it ran counter to the well-accepted personal norms asset out in the personal law of the parties. He therefore, went into the question as to who are the heirs of Seeni Rowther. He found that the first plaintiff and the first defendant are the heirs of Seeni Rowther and that the second defendant being a non-heir, is not entitled to a share either under Ex B-1 or otherwise. As regards the movables in the second item of the schedule properties, the learned Judge held that they belonged to the second defendant. Having said so in the judgment, there is no reference to it in the decree. As regards the main conclusion of the learned trial judge there is no cross-objection by the prejudiced party. The appellants (first and second defendants) contended before us that Exs.B-1