The onus to prove the genuineness of the Will lies on the propounder, and the legal requirements for proving the Will must be complied with, including the attestation of Wills and the examination of attesting witnesses.

JUDGMENT :

(Prayer: Civil Miscellaneous Appeal is filed under Order 43 Rule 1(U) of the Civil Procedure Code against the order of remand made in the Judgment and Decree dated 13.08.2019 made in A.S.No.36 of 2017 on the file of the learned Sub-Court, Kangayam (A.S.No.20 of 2017 -Sub-Court, Dharapuram) reversal of the judgment and decree dated 21.03.2017 made in O.S.No.219 of 2009 on the file of the learned District Munsif Court, Kangayam.)

1. Heard Mr.N.Manokaran, learned counsel for the appellant, and Mr.K.S.Jayaganeshan, learned counsel for the respondents, through Video Conferencing, due to COVID-19 Pandemic.

2. The plaintiff in O.S.No.219 of 2009 on the file of learned District Munsif Court, Kangayam, is the appellant herein, and the respondents herein are the defendants 2 and 3 in the suit. The appellant herein has filed the said suit for partition and separate possession of her half share in the suit properties. The learned trial Court, by decree and judgment dated 21.03.2017, has decreed the suit as prayed for. Aggrieved by the same, when appeal was preferred by the defendants 2 and 3/respondents herein, the learned first appellant Court, by decree and judgment dated 13.08.2019 passed in A.S.No.36 of 2017, has allowed the appeal by remanding the matter back to the learned trial Court to decide the lis on merits after recording the additional oral evidence by examining one witness on the side of the defendants 2 and 3. Challenging the order of remand, the plaintiff/appellant herein has filed the present appeal.

3. For better understanding, the parties will be referred to as per their ranking in the trial Court.

4. Mr.N.Manokaran, learned counsel appearing for the plaintiff/appellant herein submitted that the plaintiff and the second defendant (D2) are the daughters of one Chellappa Gounder, who died on 10.05.2009. The first defendant (D1) is the wife of Chellappa Gounder and the third defendant (D3) is the husband of D2 and son-in-law of Chellappa Gounder. The subject matter of suit property is the ancestral property of Chellappa Gounder. The plaintiff was married in the year 1981. There was a partition between Chellappa Gounder and his younger daughter Parvatham/D2 by way of a registered partition deed dated 10.03.1993, in and by which, ‘B’ schedule property was allotted in favour of D2 and ‘A’ schedule property was allotted to the deceased Chellappa Gounder. Whileso, deceased Chellappa Gounder had bequeathed his share of ‘A’ schedule property by executing a Will dated 28.05.1999/Ex.B5 in favour of D3, who is the husband of D2.

4.1. Assailing the said Will dated 28.05.1999, the plaintiff has filed the suit in O.S.No.219 of 2009 seeking partition and then to allot one such share in her favour. She has also filed one another suit in O.S.No.143 of 2010 to declare the sale deed dated 25.08.1998 jointly executed by the deceased Chellappa Gounder and his daughter/D2 in favour of one M.S.Palanisamy and M.S.Thirumoorthy as null and void. Both matters were jointly tried by the learned trial Court and finally, a common judgment dated 21.03.2017 was passed in O.S.No.219 of 2009 and O.S.No.143 of 2010.

4.2. The suit in O.S.No.219 of 2009 was decreed holding that the plaintiff is entitled to preliminary decree for partition and that the suit property shall be divided into 2 equal shares and one such share shall be allotted to her.

4.3. With regard to suit in O.S.No.143 of 2010, it was contended by the defendants 3 and 4 before the learned trial Court that the plaintiff/Lakshmi got married way back in the year 1981, therefore, by virtue of Tamil Nadu Act 1 of 1990, she cannot claim any share in the property of her father Chellappa Gounder, hence, there was no bar for the deceased Chellappa Gounder to alienate the suit property in favour of defendants 3 and 4 under Ex.B16. In view of such submission, finding that dispossession by way of sale deed dated 25.08.1998/Ex.B16 made by Chellappa Gounder and D2 was absolutely valid, she left to the Cou