A Will must be a legal declaration regarding the testator's property and cannot deal with another person's property; discrepancies in execution render it invalid.

JUDGMENT :

(Judgment of the Court was made by R.SUBRAMANIAN, J.)

PRAYER: Appeal Suit filed under Section 96(1) of C.P.C., praying to set aside the judgment and decree dated 02.11.2012 made in O.S.No.38 of 2011 on the file of the Court of the II Additional District Judge, Tiruvallur at Poonamallee and consequently allow the above First Appeal.

The first defendant is the appellant. The first and second respondents are the plaintiff and second defendant respectively.

2. The appellant is aggrieved by the decree for partition and separate possession granted in favour of the plaintiff, declaring his 1/3rd share in the suit property. The plaintiff's sued for partition contending that the suit property belonged to the mother of the parties namely Navaneetham, who died on 14.12.2002. The said property was purchased under a Sale Deed dated 14.06.2000. As the son, the plaintiff would contend that he would be entitled to 1/3rd share in the suit property. The defendants 1 and 2 are the siblings of the plaintiff. The second defendant admitted the case of the plaintiff. The first defendant filed a written statement contending that the suit property was purchased by her, out of her own income in the name of her mother. It was also contended that the mother had executed a Will on 10.10.2002, bequeathing the suit property to the first defendant. Therefore, according to the first defendant, neither the plaintiff nor the second defendant are entitled to a share in the suit property. On the above pleadings, the learned Trial Judge framed the following issues and additional issues:-

1) Whether the Will relied by the 1st defendant dated 10.10.2002 is true, genuine and valid?

2) Whether the house situated in the suit property is constructed with the loan borrowed by the plaintiff?

3) Whether the loan has been raised in the name of the plaintiff as narrated by the 1st defendant in her written statement?

4) Whether the deceased S.Navaneetham was the absolute owner of the suit property and died intestate without execution any testament?

5) Whether the plaintiff is entitled to 1/3 share?

6) To what relief the plaintiff is entitled?

Additional issues:-

7) Whether the plaintiff is entitled to a sum of Rs.72,000/- as mesne profits?

8) Whether the plaintiff is entitled to future mesne profits?

3. At trial, the plaintiff was examined as P.W.1 and Exs.A1 to A6 were marked through him. The first defendant examined herself as D.W.1. The attesting witness to the Will was examined as D.W.2. The second defendant was examined as D.W.3 and Exs.B1 to B14 were marked through him.

4. The learned Trial Judge, on consideration of the evidence on record, rejected the claim of the first defendant that the property was purchased by her, out of her own income in the name of her mother. The learned Trial Judge also disbelieved the Will by going into certain features found in the Will, which created a considerable doubt as to the execution of the Will by Navaneetham. On the said findings, the learned Trial Judge concluded that the plaintiff and the defendants are entitled to 1/3rd share each in the suit property and a preliminary decree was granted declaring 1/3rd share. Aggrieved against the said decree, the appellant/first defendant has filed the present Appeal Suit.

5. Pending the appeal, the second defendant died unmarried and the plaintiff and the first defendant being the siblings, will be the legal representatives and they would inherit the share in the property equally.

6. Mr.Baskaran, learned counsel appearing for the appellant would vehemently contend that the Trial Court erred in disbelieving the Will. Drawing our attention to the evidence on record, the learned counsel would submit that once the attesting witness has spoken about the execution of the Will, the Trial Court ought not to have disbelieved the Will on extraneous reasons. The learned counsel would also point out that evidence is available to show that the suit property was purchased from and out of the income of the firs