The central legal point established in the judgment is the court's reliance on the provisions of the Indian Succession Act and the Indian Evidence Act to determine the validity of the Will and the possession of the suit property.

JUDGMENT

(Prayer: Second Appeal filed under Section 100 of Civil Procedure Code against the decree and Judgment dated 14.01.2000 in AS.No.129 of 1999 on the file of the Principal District Court, Erode, upholding the decree and Judgment dated 26.02.1999 in OS.No.299 of 1994 on the file of the Sub Court, Dharapuram.)

1. The unsuccessful plaintiff before both the Courts below has filed the present second appeal. The plaintiff filed the suit in O.S.No.299 of 1994 before the Sub Court, Dharapuram, for partition of the suit properties into two equal shares and to allot one such share to him.

2. For the sake of convenience, the parties are referred to as per their ranking in the trial court and at appropriate places, their rank in the present second appeal would also be indicated.

3. The case of the plaintiff in nutshell is as follows:

The suit properties originally belonged to one Chinnasamy Gounder. On 07.07.1969 Chinnasamy Gounder and his sons Palanisamy Gounder (first defendant) and Thangavel Gounder partitioned the suit properties. First item of the suit property was allotted to the share of the first defendant. Second item of the suit property was allotted to the share of Chinnasamy Gounder. Chinnasamy Gounder died intestate on 05.06.1984. Thangavel Gounder also died in the year 1993. The defendants 2 to 4 are the legal heirs of Thangavel Gounder. Since there is a dispute with regard to the enjoyment of the suit properties between the plaintiff and the defendants, the plaintiff demanded the defendants to divide the suit properties into two equal shares and to allot 1/2 share in the first item of the suit property and 1/4 share in the second item of the suit property.

4. The suit was resisted by the defendants 2 to 4 on the following grounds:

i. As far as the second item is concerned late Chinnasamy Gounder and his son Thangavel Gounder were in enjoyment of the same in pursuance of the Will dated 17.10.1973 (Ex.B2).

ii. The defendants 3 & 4 relinquished their right in respect of the second item of the suit property in favour of the second defendant. Therefore, the second defendant alone is in possession and enjoyment of the suit properties and the plaintiff cannot claim any right over the said properties.

5. On the basis of the above pleadings, the trial Court framed the following issues:

i. Whether the plaintiff is entitled for a preliminary decree on partition and separate possession in respect of all the suit properties as prayed for by him?

ii. Whether the defendant is entitled to the second item of the suit property pursuant to the Will dated 17.10.1973?

iii.Whether the relinquishment deed dated 16.09.1994 is true and valid?

iv. To what relief, the plaintiff is entitled?

6. In the trial Court, the plaintiff examined himself and one another witness and marked Ex.A1 to Ex.A7. The second defendant examined himself and one another witness and marked Ex.B1 to Ex.B15.

7. The learned Subordinate Judge, Dharapuram, after analysing the oral and documentary evidence adduced on both sides decreed the suit only in respect of Item No.1 and dismissed the suit in respect of Item No.2 vide her decree and judgment dated 26.02.1999, aggrieved over which the plaintiff filed an appeal in A.S.No.129 of 1999 before the Principal District Court, Erode. Learned Principal District Judge dismissed the appeal and upheld the findings recorded by the trial Court.

8. Now the present second appeal is filed by the plaintiff and the same is admitted on the following substantial questions of law.

i. "Whether the execution of the Will Ex.B2 is proved in accordance with Section 63 of the Indian Succession Act and Section 65 of the Indian Evidence Act ?

ii. Whether the Courts below were right in shifting the burden of disproving the fact that the testator of the Will was in sound and disposing state of mind on the appellant?