The main legal point established in the judgment is that the admissibility and proof of a Will should adhere to the mandate prescribed under the Evidence Act, and examination of attesting witnesses is mandatory unless the genuineness or validity of the Will is questioned.

JUDGMENT

(Prayer: Second Appeal filed under Section 100 of the Code of Civil Procedure against the judgment and decree dated 28.11.2014 in A.S.No.04 of 2014 on the file of the Subordinate Judge of Arni in confirming the judgment and decree dated 22.07.2013 in O.S.No.498 of 2004 on the file of the District Munsif at Arni.)

1. The defendant is the appellant in this Second Appeal.

2. The respondent/plaintiff filed a suit seeking for the relief of partition of the suit properties and for allotment of half share in favour of the plaintiff.

3. The case of the plaintiff is that the properties were originally owned by Chinnadurai Mudaliar through a registered sale deed dated 05.01.1972. He executed a Will on 09.05.1977, marked as Ex.A6 and he bequeathed the property in favour of the Male heirs of his nephews Purusothaman and Murugesa Mudaliar. The plaintiff is the son of Purusothaman and the defendant is the wife of Murugesa Mudaliar.

4. The further case of the plaintiff is that the above said Chinnadurai Mudaliar died on 03.09.1977 and as a consequence, the property was jointly enjoyed by Purusothaman and Murugesa Mudaliar. Thereafter, the plaintiff was born in the year 2003. It is stated that the father of the plaintiff viz., Purusothaman went to madras for his avocation and requested Murugesa Mudaliar to give his share in the cultivation that is made in the property. Later, Murugesa Mudaliar died and the defendant took possession of the suit property and was harvesting the crops. It is alleged that she did not give any share to the father of the plaintiff.

5. The Plaintiff on attaining majority approached the defendant and requested to give half share in the suit property as per the Will. The defendant refused to give any share to the plaintiff. In the meantime, the plaintiff also applied for a joint patta and joint patta was issued in his name through proceedings dated 08.01.2003. Even thereafter, the defendant was not willing to give the share of the plaintiff. Left with no other alternative, the suit was filed seeking for the relief of partition and allotment of half share in the suit property.

6. The defendant filed a written statement. She took a defence that Chinnaduari Mudaliar and Purusothanam orally sold their entire share to the defendant in the year 1989 and consequently, the defendant was in possession and enjoyment of the suit property. She was also paying the kist and tax receipts were issued in her name. In view of this defence taken by the defendant, she completely denied the right of the plaintiff in the suit property. 5. Both the Courts below after considering the facts and circumstances of the case and on appreciation of oral and documentary evidence, concurrently held against the defendant and the suit was decreed. Aggrieved by the same, the defendant has filed this second appeal.

7. At the time of admitting the second appeal, this Court framed the following substantial question of law:-

(i) Whether a suit for partition is maintainable even though the father is alive and the appellant is entitled for a share only per stripes.

8. During the course of arguments, this Court framed the following additional substantial question of law :-

(a) Whether both the Courts below were right in relying upon Ex.A-6 only based on the admission made by the defendant without the same being proved in accordance with Section 68 of the Indian Evidence Act?

9. Heard the learned counsel for the appellant and the learned counsel for the respondent and this Court also carefully considered the materials available on record and the findings of both the Courts below.

10. There is no dispute with regard to the fact that Chinnadurai Mudaliar was the original owner of the suit property. He had executed a Will and given life interest to his nephews Murugesa Mudaliar and Purusothaman and the vested reminder was given in favour of the male heirs of the nephews. It is also an admitted case that one of the nephew viz., Murugesa Mudaliar died and his wif