A Will must be proved in accordance with Sections 63(c) and 68 of the Succession Act, and Section 90 of the Evidence Act does not apply to Wills.

JUDGMENT :

Aggrieved over the Judgement and Decree dated 12.09.2013 passed in O.S.No.149 of 2004 by the Principal District Judge, Cuddalore.

2. For the sake of convenience, the parties are referred to as per their rankings in the trial Court.

3. Suit for partition and separate possession.

4. The defendants in O.S.No.149 of 2004 on the file of the Principal District Court, Cuddalore, is the appellants herein.

5. The plaintiffs' case is as follows:

Kuppusami Pillai married twice. His first wife is Thayarammal. His second wife is Amaravathi. The marriage of Amaravathi was celebrated on 25.10.1926. Through the 1^st wife Thayarammal, Kuppusami Pillai had 3 sons by name Arumugham, Subramaniam and Shanmugham. All the aforesaid persons are dead. Shanmugham died without marriage. Arumugham's wife is dead. He left behind him only one issue, a female issue by name Rani, who is the 1^st defendant in the suit. Subramanian has a son namely Vaidayanathan, who is the 2^nd defendant and 3 daughters namely Kalvikarasi, Senthamizhselvi and Vijaya. They are defendants 3 and 4 and 9^th plaintiff in the suit respectively. Subramanian's wife is dead.

5.1. Through the 2^nd wife Amaravathi, Kuppusamy had only 4 daughters and no sons. They are Dhanalakshmi, Meenakshi, Sakkubai and Saroja. Dhanalakshmi is no more. Her husband Natarajan is also dead. Plaintiffs 1 to 3 are their 3 sons and her legal heirs. Meenakshi is also dead. Plaintiffs 4 to 6 are husband, son and daughter and hence, her legal heirs. Plaintiff 7 & 8 are other two daughters. 9^th plaintiff has married 2^nd plaintiff.

5.2. The suit properties belonged to Kuppusami Pillai. On the death of Kuppusami Pillai, all his issues through both wives became entitled to his properties equally. Of them, Shanmugham died without any issues. Hence, in all the properties, the remaining two sons Arumugham, Subramaniam and 4 daughters Dhanalakshmi, Meenakshi, Sakkubai and Saroja each became entitled to 1/6 share. Since Dhanalakshmi is no more, plaintiffs 1 to 3 are entitled to 1/6 share. Plaintiffs 4 to 6 are entitled to the 1/6 share of Meenakshi. Plaintiffs 7 & 8 are each entitled to 1/6 share. Arumugham's 1/6 share has been obtained by the 1^st defendant. Subramaniam's 1/6 share shall be succeeded to by 9^th plaintiff and defendants 2 to 4. Thus, 9^th plaintiff is entitled 1/24 share while defendants 2 to 4 are entitled to 1/24 share each.

Thus, the position of sharers is as follows:

The 1^st defendant is residing in suit item 1. 3^rd defendant is residing in suit item 3. In suit item 2, a tenant is in occupation. Till recently, the parties were living amicably. There has been no partition till date. On and from 15.8.2004 plaintiffs have been making a demand for partition but the defendants had been evading. Hence, plaintiffs 1, 5, 7 & 8 issued a notice dated 26.8.2004 to defendants 1 and 2 calling upon them to effect a division. The plaintiffs are not concerned with the release deed alleged to have been executed by 1^st defendant in favour of 2^nd defendant. The plaintiffs are not parties to any of the transactions. Their right has not been denied until now. In the circumstances, the question of adverse possession and ouster do not arise and thus, pleaded to allow the suit.

6. The defendants contested the suit and filed a written statement and denied the allegations contained in the plaint and contended that the deceased Kuppusamy had two wives and they are no more. As per the genealogy, the Plaintiffs excepting the 9^th Plaintiff all are legal heirs of the second wife of the deceased Kuppusamy and the defendants are the legal heirs of the deceased Kuppusamy. None of the plaintiffs are entitled for a share in the suit property. The plaintiffs have come up with a false case. The deceased Kuppusamy has executed a Will dated