The main legal point established in the judgment is the requirement for the propounder of a Will to remove suspicious circumstances surrounding the Will, failing which the Will may be deemed fabricated and not genuine.

JUDGMENT :

PRAYER: Second Appeal filed under Section 100 of Civil Procedure Code against the Judgment and Decree dated 10.01.2022 in A.S.No.4 of 2021 on the file of the Subordinate Court, Manapparai, reversing the Judgment and Decree dated 15.02.2012 in O.S.No.18 of 2006 on the file of the District Munsif Court, Manapparai.

This Second Appeal has been filed challenging the judgment and decree of the Lower Appellate Court namely Sub Court, Manapparai dated 10.01.2022. The appellant is the plaintiff in the suit O.S.No.18 of 2006 on the file of the District Munsif Court, Manapparai. The respondents are the defendants in the said suit. The suit was filed for partition claiming 1/4th share in the suit schedule property. The appellant claims that she is the daughter born through the first wife of her father Pethan. The respondents 2, 3 and 4 are the children born through the second wife of Pethan. The first respondent is the son of the second respondent/first defendant. In the forthcoming paragraphs, the parties are described as per their litigative status in the suit.

2. In the suit, the first defendant alone has filed his written statement. The second defendant, who is the son of the first defendant, adopted the written statement of the first defendant. The defendants 3 and 4, who are the sisters of the first defendant, remained ex parte before the Trial Court. But, however, before the Lower Appellate Court, they entered appearance and sailed along with Ponnusamy, the first defendant in the suit. The first defendant in the suit, who had filed the written statement which is adopted by the second defendant, had pleaded that Pethan, his father, had executed a Will dated 12.06.1990 by which Jothi Ponnarasu his son, namely, the second defendant was the sole beneficiary in respect of the suit schedule property. It is also pleaded in the written statement of the first defendant that the plaintiff along with the third and fourth defendants, who are his sisters, have released their share in the suit schedule property by executing a release deed in his favour. The plaintiff has however denied that she had executed any release deed in favour of Ponnusamy, the first defendant and has also disputed the Will, which is alleged to have been executed in favour of the second defendant, the alleged beneficiary.

3. Based on the pleadings of the respective parties, issues were framed by the Trial Court, which are as follows:

a) Whether the plaintiff is entitled for partition as prayed for in the plaint?;

b) Whether the plaintiff is entitled for future damages for the alleged unlawful use and occupation of the suit schedule property by the defendants?;

c) To what other reliefs?;

4. Before the Trial Court, on the side of the plaintiff, six documents were filed which were marked as exhibits A1 to A6, which are as follows:

(i) Ex.A1 dated 02.05.1953 - Sale deed executed by Kaveri Chettiyar in favour of Pethan;

(ii) Ex.A2 dated 18.04.2005 - Patta No.529 standing in the name of Ponnusamy;

(iii) Ex.A3 dated 19.05.2005 - Legal notice issued by the plaintiff;

(iv) Ex.A4 - Acknowledgment card;

(v) Ex.A5 – 07.06.2005 - Reply notice sent by the first defendant;

22.03.2006 - Certified copy of the mortgage deed;

(vi) Ex.A6 - Licence of the document writer, Chindhamani.

On the side of the plaintiff, three witnesses were examined, namely, the plaintiff herself as P.W.1, Chindhamani, the alleged scribe of the Will as P.W.2 and Rengaraj, Panchayat Clerk as P.W.3. On the side of the defendants, three documents were filed which were marked as exhibits B1 to B3, which are as follows:

(i) Ex.B1 dated 07.01.2010 – Patta No.529 standing in the name of Ponnusamy;

(ii) Ex.B2 – Assessment tax receipts (13 in number) standing in the name of Ponnusamy;

(iii) Ex.B3 dated 12.06.1990 – Will executed by Pethan. Three witnesses were examined on the side of the defendants, namely, D.W.1 – Ponnusamy, the first defendant in the suit, D.W.2 and D.W.3, namely, Mookan and Krishnan respectively, who are the