The burden of proof lies on the party marking a Will to establish its genuinity and compliance with legal requirements. Failure to do so can result in the entitlement of the opposing party to the disputed property.

1. The Second Appeal on hand is preferred against the judgment and decree passed by the Trial Court in O.S.No.387 of 1991 dated 25.7.1994, confirming the same by the First Appellate Court in A.S.No.10 of 1995 dated 31.7.2003.

2. The ranking of the parties are referred as per the ranking assigned before the Trial Court.

3. The plaintiffs are none other than the brother of the defendant. Originally the defendant Shri.Nainamalai passed away and subsequently his legal heirs were impleaded as parties in the Second Appeal. The plaintiffs filed the suit in O.S.No.387 of 1991 on the file of the District Munsif Court, Rasipuram, claiming 2/3 share in the suit schedule property from the defendant.

4. It is contended that the properties in question were purchased in the name of Smt. Pothammal, who is the mother of the plaintiffs as well as the defendant. Two properties were purchased in the name of Smt. Pothammal on 19.12.1968 and on 21.4.1969, which were marked as Ex.B-1 and Ex.B-2 respectively in the civil suit.

5. It is an admitted fact that the said two properties were purchased in the name of Smt. Pothammal and the said Smt.Pothammal is the mother of the plaintiffs as well as the defendant. The case of the plaintiffs was that their mother purchased the property in her name from and out of the earnings of their father and therefore, the plaintiffs are entitled for 2/3 share in the entire property belongs to their mother late. Smt. Pothammal. However, the properties were in the possession of the defendant and therefore, the plaintiffs were constrained to file the civil suit, seeking partition of the said properties.

6. The defendant before the Trial Court contended that undoubtedly, the properties were purchased in the name of his mother Smt.Pothammal. However, the said properties were purchased from and out of the earnings of the defendant as well as by pledging/selling the jeweleries belonged to the wife of the defendant.

7. At the outset, the defendant pleaded before the Trial Court that he purchased the property by investing his own money in the name of his mother. In other words, the mother of the plaintiffs and the defendant was a benami of the defendant and therefore, the plaintiffs are not entitled for any share in respect of the properties stand in the name of their mother late Smt. Pothammal.

8. It is further contended that the original owner of the property late Smt.Pothammal executed the Will in favour of the defendant, which was marked as Ex.B-38. The said Will was unregistered and the same was marked as a document.

9. Relying on the fact that the mother of the plaintiffs and the defendant executed the 'Will' in favour of the defendant and relying on the pleadings that the said properties were purchased in the name of the mother from and out of the earnings of the defendant, the defendant pleaded that the plaintiffs are not entitled for any relief, as such, sought for in the suit.

10. The Trial Court had formulated the issues in respect of the validity of the Will said to have been executed by the mother of the plaintiffs and the defendant Smt.Pothammal on 10.11.1972. Whether the plaintiffs are entitled to claim shares in the suit schedule property, which stands in the name of their mother Smt.Pothammal. Whether the suit was properly valued or not with reference to the Tamil Nadu Court Fees and Suit Valuation Act. In respect of the said issues, the Trial Court examined the witnesses and based on the documents and the depositions, came to the conclusion that the properties admittedly stand in the name of the mother of the plaintiffs and the defendant late Smt. Pothammal. Admittedly, the Will dated 10.11.1972 was an unregistered document (Ex.B-38).

11. In respect of an unregistered Will, the Trial Court found that the burden of proof lies on the person, who marked the Will as a document. In the present Second Appeal on hand, the Will was marked by the defendant, claiming that the deceased Smt.Pothammal executed the Will in