The main legal point established is the requirement to prove a Will as per the provisions of the Indian Succession Act and the Indian Evidence Act, and the distinction between a Settlement deed and a Will.

JUDGMENT

(Prayer: This First Appeal is filed under Section 96 of C.P.C., against the judgment and decree dated 17.10.2014 made in O.S.No.55 of 2011 on the file of the Additional District and Sessions Court, Hosur.)

V.M. Velumani, J.

1. The appellants are the plaintiffs and respondents are defendants in O.S.No.55 of 2011 on the file of the Additional District and Sessions Court, Hosur. The appellants filed the said suit for partition of the suit property into five equal shares, allotment of three shares to the plaintiffs and for separate possession by way of passing preliminary decree, against the respondents and to appoint an Advocate Commissioner to divide the suit property into five equal shares and allot three shares to the plaintiffs with separate possession by way of passing final decree in the suit. After contest, the said suit was dismissed by the judgment and decree dated 17.10.2014.

2. The unsuccessful plaintiffs have come out with the present appeal challenging the judgment and decree dated 17.10.2014 made in O.S.No.55 of 2011 on the file of the Additional District and Sessions Court, Hosur. Case of the appellants:

3. According to the appellants, suit property originally belonged to their father Srinivasa Pillai, he having purchased the same for Rs.400/-. Their father Srinivasa Pillai executed settlement deed dated 16.04.1981 settling the property only in favour of his wife Muniammal and his sons, the respondents herein. The said document was not acted upon and has no force. Thereafter, the said Srinivasa Pillai appointed his wife Muniammal as Power Agent by Power of Attorney dated 03.09.1985 to look after the suit property and for accounting the rental income. Subsequently, he cancelled the said Power of Attorney by Cancellation deed dated 08.05.1997. The said Srinivasa Pillai executed a registered Will dated 28.05.1997 and registered the same bequeathing the suit property to his wife Muniammal, appellants and respondents equally. Their father died on 26.09.1998. The appellants, respondents and their mother are enjoying the suit property jointly and are in joint possession and are sharing the income equally.

3(i) While so, the respondents in order to grab the suit property created documents by playing fraud and forgery. They took mother of the parties to Sub-Registrar Office, Hosur, to execute a Settlement deed in their favour and forced her to sign the settlement deed. The respondents filed suit for partition and obtained preliminary decree and final decree. Based on the preliminary decree and final decree, they mutated the revenue records in their name. The respondents attempted to sell the suit property. The appellants sent a notice dated 14.12.2009 to the respondents demanding 3/5th share in the suit property. The respondents sent a reply dated 21.12.2009 denying the demand of partition. Their mother Muniammal died on 06.07.2010. The appellants are entitled to 3/5th share in the suit property and hence, filed the suit for partition.

Case of the respondents:

4. The respondents filed written statement and denied all the allegations made by the appellants. According to the respondents, their father Srinivasa Pillai took hand loan and celebrated marriage of the appellants and his first daughter Padmavathy in a grand manner, gave jewels to the appellants and also dowry to the respective persons. Their father helped the appellants to build the houses in the plots given to the appellants by him. After that, their father by registered Settlement deed dated 16.04.1981 bearing document No.1473/1981 on the file of the Sub-Registrar Office, Hosur, settled the suit property only on their mother and respondents. The Settlement deed was acted upon. The respondents and their mother were paying taxes to the concerned authority. The respondents were not aware of the Power of Attorney dated 03.09.1985 executed by their father appointing their mother as his agent and subsequent cancellation of the same. The respondents came to know