IMPORTANT POINT
The main legal point established in the judgment is the interpretation and application of legal provisions under the Hindu Succession Act, 1956 and the Indian Evidence Act, 1872 in determining the entitlement to partition and separate possession, as well as the presumption of due execution and attestation of a Will under Section 90 of the Indian Evidence Act, 1872.

JUDGMENT :

P.B. BALAJI, J.

Prayer: Second Appeal filed under Section 100 of the Code of Civil Procedure to set aside the Judgment and Decree as made in A.S. No. 19 of 2016 dated 30.11.2017 on the file of the 4th Additional District Court, Erode District at Bhavani, confirming the Judgment and Decree as made in O.S. No. 69 of 2007 dated 01.06.2016 on the file of the Subordinate Court, Bhavani, Erode District.

1. The unsuccessful defendants in a suit for partition and separate possession are the appellants in the Second Appeal.

2. The parties are described as per their litigative status before the trial Court.

3. The plaintiff, claiming to be the daughter of one Duraisamy, Son of Karuppa Gounder has filed the suit. It is her case that her grandfather Karuppa Gounder, was in enjoyment of specific portion of lands that devolved on him and he died prior to 1956 i.e. before the coming into force of the Hindu Succession Act. He had two sons viz. Duraisamy and Ramasamy and they became entitled to 50% equal share in the properties of late Karuppa Gounder. The plaintiff’s father Duraisamy married one Kuppayee and the plaintiff is their only child. The mother of the plaintiff died when the plaintiff was 16 years old and it was only the plaintiff who took care of her father. The plaintiff being handicapped, her father offered to settled his entire half share to her at the time of her marriage. Despite the same, the plaintiff’s father continued to cultivate the lands and much later, when he suffered an accident, he executed his last Will and testament on 27.04.2007, bequeathing all his properties in favour of the plaintiff.

4. It is the further case of the plaintiff that even dehors the said Will, being the only surviving legal heir, the plaintiff would any way become entitled to the entire share of her father. As the defendants denied the plaintiff’s right to cultivate her half share and in view of the fact that there was no partition, the plaintiff filed the suit seeking her half share to be declared and consequently, she being put in possession of the same.

5. The third defendant filed a written statement denying that the plaintiff was the daughter of Duraisamy. The alleged Will dated 24.07.2007 is also denied. According to the defendant, Duraisamy and his wife had no male issues and after the death of his wife Kuppayee, Duraisamy was only living with the first defendant. According to the defendants, on 30.11.1978, Duraisamy had executed a registered Will, in sound and disposing state of mind, bequeathing his property to defendants 2 and 3, who were then minors. According to the defendants, the plaintiff was therefore not entitled to any relief.

6. The trial Court, finding that the plaintiff had established her right for partition, decreed the suit.

7. The defendants preferred an Appeal in A.S. No. 19 of 2016. Before the First Appellate Court, an application has been taken out under Order 41 Rule 27 to let in additional evidence, viz. the Application form lodged by the plaintiff for legal heir certificate of Duraisamy. However, the First Appellate Court has refused to admit the said additional evidence and rejected the application. Deciding the Appeal, the First Appellate Court held that the defendants have not proved the Will putforth by them and consequently, dismissed the Appeal.

8. On 25.07.2019, the above Second Appeal was admitted on the following substantial questions of law:

“(a) Whether The courts below are right in decreeing the suit for partition solely based on Ex.A3/Legal heirship certificate when such document was not proved by the plaintiff by examining the Government Official who issued the document?

(b) Whether the courts below are right in decreeing the suit for partition when the plaintiff had not proved her parentage properly?

(c) Whether the findings of the court that the ‘Will’ dated 30.11.1978 marked as Ex.B1, were not proved is correct when the same was proved beyond doubt by adducing available records and evidence?”

9. Heard