The Court can entertain a second appeal only if substantial questions of law are involved, and the Lower Appellate Court must assign proper reasons while rendering findings as mandated under the Civil Procedure Code.

JUDGMENT

(Prayer: APPEAL under Section 100 of the Civil Procedure Code against the judgment and decree dated 23.9.2011 in A.S.No.6 of 2010 on the file of the District Court No.2, Kancheepuram modifying the judgment and decree dated 14.8.2008 in O.S.No.128 of 2007 on the file of the Subordinate Court, Kancheepuram.)

1. The defendants are the appellants in this second appeal.

2. Respondents 1 to 3 herein/plaintiffs filed a suit seeking for the relief of partition and for allotment of 2/6th share in their favour.

3. The case of the plaintiffs is that the suit property belonged to Nagammal, wife of Govindasamy Naidu under a registered sale deed dated 02.1.1956. She was in possession and enjoyment of the property till her demise on 05.11.1996. The further case of the plaintiffs is that the said Nagammal had two sons and four daughters. The first plaintiff is one of the daughters and plaintiffs 2 and 3 are the children of yet another daughter - late Salammal. Defendants 1 and 2 are two other daughters and defendants 3 and 4 are the sons of the said Nagammal.

4. The grievance of the plaintiffs is that the defendants joined together, colluded with one another and made an attempt to knock off the entire property without giving any share to the plaintiffs. Hence, the plaintiffs, left with no other alternative, filed the suit seeking for the relief of partition.

5. Defendants 1 to 4 filed a written statement wherein they took a stand that their mother - the said Nagammal executed a registered will dated 24.9.1976, marked as Ex.B2, with respect to the suit property and the property was bequeathed in favour of defendants 2 to 4. They took a further defense that after the demise of the said Nagammal, the Will came into force and defendants 2 to 4 became the absolute owners of the suit property. Thereafter, they amicably partitioned the property among themselves through a registered partition deed dated 23.3.2000, marked as Ex.B4. The defendants, thus, denied the very right claimed by the plaintiffs and sought for dismissal of the suit.

6. The Trial Court, on considering the facts and circumstances of the case and on appreciation of the oral and documentary evidence, dismissed the suit through judgment and decree dated 14.8.2008. Aggrieved by the same, the plaintiffs filed an appeal in A.S.No.6 of 2010 before the District Court No.2, Kancheepuram. The Lower Appellate Court, on re-appreciation of the oral and documentary evidence, allowed the appeal through judgment and decree dated 23.9.2011 and thereby the judgment and decree of the Trial Court were set aside and a preliminary decree was passed in favour of the plaintiffs. Aggrieved by the same, the defendants have filed this second appeal.

7. When the second appeal was admitted on 08.3.2019, this Court framed the following substantial questions of law for consideration:

1. Whether the registered Will can be rejected in evidence under Section 68 of the Indian Evidence Act despite proof of its execution by examination of the attesting witnesses and examination of the Sub-Registrar?

2. Whether any oral evidence can be considered under Section 91 of the Indian Evidence Act with regard to the contents of the Will that had been duly registered and the original Will has been marked as Exhibit in evidence?

3. Whether the presumption under Section 90 of the Indian Evidence Act with regard to the signature and every part of the Will that has been duly registered, can be ignored in the absence of any challenge to the validity of the registered Will?

4. Whether any findings or conclusions can be drawn in the absence of any pleadings or proof to the effect that the Will was not executed voluntarily or that it was obtained by fraud?

5. Whether in the absence of any pleading or denial with regard to the execution of the Will, any issue can be framed regarding the validity of the Will, under Order XIV Rule 1 of the Code of Civil Procedure?”

8. This Court heard Mr.T.N.Sugesh, learned counsel for the