The main legal point established in the judgment is the requirement to prove testamentary capacity and the genuineness of a Will in property disputes. The judgment emphasizes the importance of proving the relationship with the deceased and the authenticity of the Will to determine entitlement to ancestral properties.

R. MALA, J.

1. The second appeal arises out of the judgment and decree dated 10.04.2002 made in A.S.No.30 of 2001 on the file of the Second Additional District Sessions Judge cum Chief Judicial Magistrate at Krishnagiri, reversing the judgment and decree dated 27.02.2001 in O.S.No.371 of 1996 on the file of the Subordinate Judge, Hosur.

2. The averment made in the plaint are as follows:

The suit properties along with other properties originally belong to Mookan @ Karthigan and his three brothers. In the year 1965, when oral partition took place between Mookan @ Karthigan and his brothers, viz., Buddan, Ponnusamy and Muni Ellagan, the suit properties were allotted to Mookan @ Karthigan. Since the plaintiff/Buddan is the son of Mookan @ Karthigan and the suit properties are ancestral properties, the plaintiff is entitled to share in it. Further, the defendant/Muniammal is the daughter of Mookan @ Karthigan. After the death of Mookan @ Karthigan in the year 1981, the plaintiff and the defendant were claiming right over his properties. In the year 1985, as the plaintiff was suffering from ill-health, the defendant started taking care of the suit properties and in the year 1989, the defendant transferred the patta in her name by colluding with the officers of the revenue department. When the plaintiff questioned the same, the defendant claimed that she bequeathed the properties on the basis of Ex.B.6/Will alleged to have been executed by the said Mookan @ Karthigan. However, it was claimed on behalf of the plaintiff that no such Will was executed by his father during his life time and the Ex.B.6/Will is not true and genuine. Since Mookan @ Karthigan died intestate, the plaintiff is entitled to share in the properties and the defendant is entitled to share. Hence, the plaintiff prayed for a preliminary decree of partition of share in the suit properties.

3. Resisting the same, the respondent filed written statement stating that Buddan is not the son of Mookan @ Karthigan. Further, it was stated that in the year 1956 when oral partition took place between Mookan @ Karthigan and his brothers, the suit properties was allotted in favour of Mookan @ Karthigan. From then on, Mookan @ Karthigan is the absolute owner of the properties. The defendant/Muniammal is the only daughter of Mookan @ Karthigan and so, he along with his wife was residing in the house of the defendant. On 10.08.1968, the said Mookan @ Karthigan had also executed a Will bequeathing the properties in favour of his daughter Muniammal. Thus, the defendant prayed for dismissal of the suit.

4. The Learned Trial Judge after considering the averments both in the plaint and written statement and arguments on either side counsel, has framed necessary issues and on perusing the oral and documentary evidence dismissed the suit against which the respondent herein as appellant has preferred an appeal in A.S.No.30 of 2001. The said appeal in A.S.No.30 of 2001 came to be allowed, against which the present second appeal has been preferred by this appellants/defendants.

5. At the time of admission, the following question of law has been framed.

“1. Whether the execution of a Will can be disbelieved on the ground that the beneficiaries have not proved that the attested witnesses were dead?

2. Whether the evidence of the son of the deceased writer of the document that he can identify the handwriting of his father is not sufficient for proving the execution of the Will?

3. For a suit for partition whether the plaintiff is not bound to prove that he is the legal heir from whom he claims the right of property?”

6. The learned counsel for the appellants would submit that the respondents herein as plaintiffs 2 to 8 had filed the suit for partition and for separate possession of share in the suit properties stating that the properties are ancestral properties of Mookan @ Karthigan who got the same by way of partition between himself and his brothers viz., Buddan, Ponnusamy and Muni Ellagan.