JUDGMENT :

(Prayer: Second Appeal is filed under Section 100 of C.P.C, against the judgment and decree of the Principal District Judge, Tiruchirappalli dated 22.07.2004 in A.S.No.66 of 2004 partly confirming the Judgment and Decree of the District Munsif Cum Judicial Magistrate Court, Lalgudi dated 15.12.2003 in O.S.No.502 of 1995.)

1. The second defendant is the appellant herein.

2. The respondents 1 and 2 herein filed O.S.No.502 of 1995 before the District Munsif Cum Judicial Magistrate, Lalgudi for the relief of partition and separate possession. The suit was decreed as prayed for. The second defendant preferred A.S.No.66 of 2004 before the Principal District Court, Tiruchirappalli. The first appeal was partly allowed by enhancing the share. Not satisfied with the judgment and decree of the First Appellate Court, the second appellant has preferred this Second Appeal.

3. It is the case of the plaintiffs that they are the sons of one Sundararaja Nattar (D1) through the second wife namely Parvathi (D3). The plaintiffs contended that the second defendant is the son of first defendant through the first wife Manickkathammal. According to the plaintiffs, the suit properties are ancestral properties and the first defendant had executed a Will on 30.01.1992 under Exhibit A6 bequeathing his 1/4th share in favour of the plaintiffs. Hence, the plaintiffs claimed 3/4 share in the suit schedule properties after admitting 1/4 share of the second defendant.

4. The first defendant who was alive then, filed a written statement contending that he got married to the third defendant after the death of his first wife and further admitted that the plaintiffs are the sons. He paid court fee for declaring his 1/4th share. The second defendant filed a written statement disputing the marital status of the third defendant and legitimacy of the plaintiffs. The third defendant filed a written statement admitting the case of the first defendant and the plaintiffs.

5. The trial Court after considering the oral and documentary evidence, came to the conclusion that the third defendant is the wife of the first defendant and the plaintiffs are the legitimate children of the first defendant. The trial Court further held that the plaintiffs have proved Exhibit A6 Will and hence, 1/4th share of the first defendant had devolved upon the plaintiffs. Hence, the trial Court decreed the suit as prayed for. The First Appellate Court confirmed the finding of the trial Court with regard to the marital status of the third defendant and the legitimacy of the plaintiffs. However, the First Appellate Court found that the plaintiffs have not chosen to examine any one of the attestors of Exhibit A6, though two attestors namely Natarajan and Ragupathi were alive. On the other hand, the plaintiffs have chosen to examine only the scribe of Exhibit A6 as PW2. The First Appellate Court held that the examination of the scribe will not amount to proving the Will under Section 68 of Indian Evidence Act. The First Appellate Court also entertained certain doubts with regard to health and state of mind of the first defendant at the time of execution of the Will. Hence, the First Appellate Court held that the plaintiffs have not proved exhibit A6 Will. The First Appellate Court modified the Judgment and Decree of the trial Court and granted a preliminary decree of 5/16 share to each one of the plaintiffs. This judgment and decree is under challenge in the present Second Appeal. The Second Appeal has been admitted on the following substantial question of law:

“Whether in law the judgment and decree of the Courts below with respect to the marriage between 1st defendant and 3rd defendant on the basis of the written statement of 1st defendant is sustainable when there is no legal sanctity or evidentiary value to the statement made by the 1st defendant before Court?”

6. The trial Court as well as the Appellate Court have considered Exhibits A1 to A9 and Exhibit A12 to prove the marital status of the