The main legal point established in the judgment is the requirement for the testator to execute a Will in a free, sound, and disposing state of mind, as per the Indian Succession Act, 1925 and the Indian Evidence Act, 1872.

C. NAGAPPAN, J.

1. Testamentary Original Suit in T.O.S.No.25/2002 and the Civil Suit in C.S.No.325/2003, both on the file of this Court, came to be disposed of by a common judgment rendered on 22.4.2009, by the learned Single Judge.

2. The original side appeal in O.S.A.No.173/2009 is preferred against the judgment and decree in C.S.No.325/2003. The second defendant is the appellant herein. Pending appeal, he died and his legal representatives were brought on record as appellant Nos.2 to 4 in the appeal. Pending appeal, the second respondent also died and his legal representatives have been brought on record as respondents 3 to 5 in the appeal.

3. The Original Side Appeal in O.S.A.No.174/2009 is preferred against the judgment and decree in T.O.S.No.25/2002. The plaintiff is the appellant herein. Pending appeal, the plaintiff died and his legal representatives have been brought on record as appellant Nos.2 to 4 in the appeal.

4. The original appellant in both the appeals is one and the same. Since both the appeals have been preferred against the common judgment, they are heard together and a common judgment is rendered.

5. In the common judgment made by the learned Single Judge, to avoid confusion, the plaintiff in T.O.S.No.25/2002, who is the second defendant in C.S.No.325/2003, has been referred to as plaintiff and the defendant in T.O.S.No.25/2002, who is the plaintiff in C.S.No.325/2003, has been referred to as defendant. In the appeals also, to avoid confusion, the parties are referred to as above.

6. The case of the plaintiff in brief, is as follows:

The plaintiff, the defendant, the first defendant in the partition suit and the deceased P.R.Vijayalakshmi are the sons and daughter of late P.R.Ramakrishna Mudaliar respectively, who died in the year 1969. A memorandum of family arrangement for partition and share of the properties of their late father was prepared and signed by all the heirs and they approached the promoter/developer for construction of flats and entered into an agreement with the builder. A Kurai Chittu dated 25.10.1998, was prepared for partitioning the properties of late P.R.Ramakrishna Mudaliar and the same was signed by the plaintiff, defendant, first defendant in the partition suit and also their sister P.R.Vijayalakshmi. Door No.51, Ayyamudali Street, Chindadripet, Chennai 2, was allotted to the plaintiff, defendant and the first defendant in the partition suit and Door No.54 in the same Street, was allotted to P.R.Vijayalakshmi. Since the properties were already partitioned, the suit for partition now laid by the defendant, is not maintainable.

Further, Selvi P.R.Vijayalakshmi, who was the absolute owner of the properties bearing Door No.54, Ayyamudali Street, Chindadripet, Chennai 2, and Flat No.001, Pammal Court, 8/1, Raja Annamalai Road, Purasawalkam, Chennai 84, bequeathed the said properties to the plaintiff by registered Will dated 9.11.2001. The plaintiff is the beneficiary under the Will and he was also appointed as Executor of the same. Insofar as the gold ornaments and other movables mentioned as item 4 of the Schedule in the partition suit, is concerned, they were belonging to mother and sister and after the death of mother, they were sold by the sister. The plaintiff has sought for grant of probate in the Testamentary Original Suit and also prayed for dismissal of the partition suit.

7. The case of the defendant in brief, is stated thus:

The first defendant in the partition suit, is the legal heir of late P.R.Ramakrishna Mudaliar through his first wife Shenbagammal. After his death, the defendant, the first defendant in the partition suit and the plaintiff inherited the properties at Door Nos.51 and 54, Ayyamudali Street, Chindadripet, Chennai, along with their mother and sister P.R.Vijayalakshmi and the property at Pammal Court, Purasawalkam, Chennai, was inherited by the plaintiff, the defendant and their sister P.R.Vijayalakshmi from their mother and they dealt with th