The court upheld the validity of a registered Will, ruling that the burden of proof for allegations of forgery lies with the defendants, which they failed to meet.

JUDGMENT :

Prayer: Testamentary Original suit filed under Sections 232 and 276 of the Indian Succession Act of XXXIX of 1925 for the grant of Letters of Administration. Against this petition a Caveat was filed on 11th day of February 2009 by the Caveators above named. The supporting affidavit was filed on the 11th day of February 2009. As per order of Court dated 29.06.2010 in O.P.No.51 of 2009, the Original Petition is directed to be converted into Testamentary Original Suit.

Prayer: This Civil Suit is filed under Order IV Rule 1 of the Original Side Rules r/w Order VII Rule 1 of the Code of Civil Procedure, prayed for a judgment and decree against the Defendants:-

a) pass a preliminary decree declaring 1/6th share each of the plaintiffs in the schedule mentioned property;

b) to appoint an Advocate Commissioner to divide the property by metes and bounds and allot one sixth share to each of the plaintiffs;

c) to pass such further or other orders and render justice and

d) to award costs of the proceedings.

The Original Petition No.51 of 2009 was initially filed seeking grant of Letters of Administration of the last Will and testament of Chittal Achi. However, after caveat being filed by the respondents 1 and 2 in the said Original Petition, the Testamentary Original Suit came to be numbered as TOS.No.34 of 2010.

2. Civil Suit in C.S.No.792 of 2007 has been filed by the three respondents in the Original Petition as plaintiffs, seeking partition and separate possession of a 1/6th share each in the suit schedule property.

3. The brief facts that are necessary to be stated for the purposes of adjudicating the present two suits are as follows:

The plaint in C.S.No.792 of 2007 in brief:

The plaintiffs are sons of Muthukaruppan Chettiar. The 1st defendant is also the son of the Muthukaruppan Chettiar. The defendants 2 and 3 are the parents of the plaintiffs and the 1st defendant. According to the plaintiffs, the parties to the suit constituted a Hindu joint family and the plaintiffs had instituted a Civil Suit in C.S.No.159 of 1990 before this Court for partition of the joint family properties. The said suit ended in a compromise and the same was recorded and a decree was passed holding that the parties would be entitled to 1/5th share each in the suit schedule property. The mother of the plaintiffs, Chittal Achi died on 12.02.2004 and pursuant to her demise, each of the plaintiffs became entitled to a 1/6th share each in the suit schedule property. When a lawyer's notice dated 01.08.2006 issued calling upon the defendants to come forward for effecting a partition, the defendants 2 and 3 contended that the mother had executed a Will on 31.10.2003. According to the plaintiffs, the Will is not a true and genuine and therefore, they are entitled to the relief of partition.

4. Written statement filed by the defendants 1 and 2 in the said suit: The suit is liable to be dismissed for non payment of proper Court fee since the plaintiffs were never in possession of the suit property at any point of time. The status of joint family as pleaded in the plaint is incorrect since it came to an end on the plaintiffs filing C.S.No.159 of 1990 before this Court. The mother, Chittal Achi had left a registered Will dated 31.10.2003, registered in Doc.No.363 of 2003 on the file of the SRO, Trichy and therefore, the suit for partition was liable to be dismissed.

5. The Original Petition in brief:

Chittal Achi executed a registered Will dated 31.10.2003, registered as Doc.No.363 of 2003 in the office of the District Registrar, Trichy. The petitioners are son and daughter of the deceased Chittal Achi and also sole beneficiaries under the Will. The Will was duly executed in the presence of two witnesses and as beneficiaries, the petitioners prayed for grant of Letters of Administration.

6. Written statement filed by the defendants in TOS.No.34 of 2010:

The defendants have already filed Civil Suit in C.S.No.792 of 2007 for partition and the alleged Will is brought up only t