The main legal point established in the judgment is that the execution of wills must be proved in the manner known to law, and failure to do so may result in the wills being disbelieved by the court.

JUDGMENT

(Prayer: Appeal Suit filed under Section 96 of the Code of Civil Procedure, against the judgment and decree dated 28.10.2004 made in O.S.No.70 of 2004 on the file of the Additional District Judge, Fast Track Court No.I, Tirunelveli.)

1. The 1st respondent as a plaintiff filed a suit in O.S.No.70 of 2004 on the file of the learned Additional District Judge, Fast Track Court No.I, Tirunelveli, against the appellants 1 to 5 and the 2nd respondent, who are the defendants in the suit, for partition and separate possession of her half share in the suit schedule properties and also for the medieval income. After trial, the trial Court, by judgment and decree dated 28.10.2004, passed a preliminary decree for partition. Challenging the said judgment and decree, the defendants 1 to 5 as appellants, have filed this appeal. Pending appeal, the 1st respondent and the appellants 1 and 4 died and their legal representatives were brought on record.

2. Brief plaint averments are as follows:-

The first suit schedule properties belonged to one Sankaralinga Muthaliyar and the second suit schedule properties belonged to his wife Anandam Ammal and both of them died intestate. The 1st respondent/plaintiff and the 1st appellant/1st defendant are the daughters of Sankaralinga Muthaliyar and Anandam Ammal. After the demise of their parents, the suit properties were in common enjoyment of the plaintiff and the 1st defendant. Since the plaintiff was not interested in common enjoyment, she requested the 1st defendant for partition through an advocate notice dated 28.09.2001 and the 1st defendant sent a reply notice dated 05.10.2001, stating that Sankaralinga Muthaliyar and Anandam Ammal executed separate wills in respect of the suit properties on 17.08.1993 and after their demise, the said wills came into force, and accordingly, the defendants are in possession and enjoyment of the suit properties. According to the plaintiff, Sankaralinga Muthaliyar and Anandam Ammal never executed any will and the alleged wills are fabricated by the 1st defendant in order to grab the plaintiff's share in the suit properties. Further, on the date of will, Anandam Ammal was suffering from paralysis and was unconscious and therefore, it is highly improbable to state that she executed a will dated 17.08.1993. Hence, the suit.

3. Brief averments in the written statement filed by the 1st defendant adopted by the defendants 2 to 5 are as follows:-

The averment that the first suit schedule properties belonged to Sankaralinga Muthaliyar and the second suit schedule properties belonged to his wife Anandam Ammal is admitted. They executed separate wills on 17.08.1993 in a sound disposing state of mind and without any instigation. As per the will executed by Sankaralinga Muthaliyar on 17.08.1993, items 1 and 2 of the first suit schedule properties were bequeathed to the defendants 2 and 1 respectively. As far as items 3 and 4 in the first suit schedule properties, it was bequeathed to the defendants 2 to 6. In respect of the second schedule properties, Anandam Ammal executed a will dated 17.08.1993, bequeathing the second suit schedule properties equally to the defendants 1 to 3 and 6. After the demise of Sankaralinga Muthaliyar and Anandam Ammal, the abovesaid wills came into force and accordingly, the defendants were in possession of their respective properties as per the wills. Therefore, the plaintiff has no right over the suit properties and there was no common possession and enjoyment of the suit properties by the plaintiff and the 1st defendant as alleged in the plaint, whereas, it is the individual properties of the defendants. The allegation that Anandam Ammal was suffering from paralysis on the date of the execution of the will dated 17.08.1993 is denied as false, whereas, on the date of execution of the will dated 17.08.1993, she was in a sound disposing state of mind. The plaintiff never stated in his advocate notice that Sankaralinga Muthaliyar and Anandam Am