The main legal point established in the judgment is that the legal formalities for producing secondary evidence must be fulfilled, and in the absence of such fulfillment, the secondary evidence cannot be relied upon.

A. Selvam J.

1. The Judgment and decree dated 09.06.2009 passed in Original Suit No.165 of 2004 by the Principal District Court, Virudhunagar District at Srivilliputtur are being challenged in the present appeal suit as well as cross objections.

2. The respondent in A.S.(MD) No.233 of 2009/cross objector as plaintiff has instituted Original Suit No.165 of 2004 on the file of the trial Court praying to pass a preliminary decree of partition in respect of her half share, wherein the present appellants have been shown as defendants.

3. It is averred in the plaint that the plaintiff is the sister of the first defendant and their father name is John Stephen and he purchased a vacant site by virtue of sale deeds dated 21.08.1989, 28.08.1989, 13.11.1989, 21.11.1989 and 15.07.1989. After purchase, he made construction and the same has been shown as suit property and the same is the absolute property of the said John Stephen and he passed away intestate on 08.02.1999 leaving behind him, his wife, plaintiff and first defendant and each of them is having 1/3 share. The mother of the plaintiff and first defendant has passed away on 27.01.2003 and prior to her demise, she executed a Will dated 22.10.1999 in respect of her separate properties. Since the mother of the first defendant and plaintiff has passed away in the year 2003, the plaintiff and first defendant are each having half share in the suit property. The second defendant has lent his support to the first defendant. Under the said circumstances the second defendant has been added as a formal party in the present suit and therefore the present suit has been instituted for getting the reliefs sought for therein.

4. In the written statement filed on the side of the defendants 1 and 2, it is averred that the relationship mentioned in the plaint is correct. The mother of the plaintiff has executed two Wills on 22.10.1999 in favour of the first defendant and plaintiff. In the Will executed in favour of the first defendant, the suit property has been mentioned. Further a family arrangement has taken place amongst the plaintiff, first defendant and their mother, wherein the property standing in the name of the father has been absolutely given to the mother. Under the said circumstances she has executed the Will dated 22.10.1999 in favour of the first defendant in respect of the suit property. Since the Will dated 22.10.1999 has come into existence and that too in favour of the first defendant, the plaintiff is not having any partible interest over the suit property and therefore the present suit deserves to be dismissed.

5. On the basis of the divergent pleadings raised on either side, the trial Court has framed necessary issues and after analysing both the oral and documentary evidence has decreed the suit only in respect of 1/3 share of the plaintiff. Against the Judgment and decree passed by the trial Court, the defendants as appellants have preferred Appeal Suit No.233 of 2009 and against the disallowed portion, the plaintiff as cross objector has filed Cross Objection No.1 of 2010.

6. Before contemplating the rival submissions made on either side, it would be useful to refer the following admitted facts. It is an admitted fact that the plaintiff is the sister of the first defendant and both of them are the children of one John Stephen and he purchased vacant site through various sale deeds and subsequently constructed building which has been shown as suit property. The said John Stephen has passed away on 08.02.1999 and his wife has passed away on 27.01.2003.

7. The consistent stand taken on the side of the plaintiff is that with regard to separate properties of mother of the plaintiff and first defendant, she executed a Will dated 22.10.1999 in favour of the plaintiff and she has not executed any Will in respect of the property standing in the name of father (John Stephen) and under the said circumstances the plaintiff is having half share in the suit property.

8. The defence put