The court affirmed that a valid Will cannot be superseded by a partnership deed regarding accounts due to a deceased partner, ensuring the beneficiaries' rights to profits.

JUDGMENT :

C. KUMARAPPAN, J.

1. The defendants 1, 2 and 5 are the appellants herein. The first respondent herein is the plaintiff before the Trial Court and the defendants 3 and 4 are the respondents 2 and 3 herein.

2. For the sake of convenience, the parties will be referred to according to their litigative status before the Trial Court.

3. The brief facts, which give rise to the instant Second Appeal is that the plaintiff is the daughter of one Savithri. The 1^st and 2^nd defendants' father Selvamani, who is the 3^rd defendant herein and deceased Savithri and the 4^th defendant are the brother and sister and children of one Muthusami Gounder. The said Muthusami Gounder and the defendants 1 and 2 together constituted a firm in the name and style of M/s.Mani Transport. The firm was constituted for the purpose of plying buses. The partnership firm was serendipitously and curiously constituted on 01.04.2005 (April 1^st) and registered under the PARTNERSHIP ACT . The said partnership firm is arrayed as 5^th defendant in the suit. In the said partnership firm, Muthusami Gounder had 40% share, and the defendants 1 and 2 had share of 30% each.

4. While so, the said Muthusami Gounder died on 23.09.2006. The plaintiff being the grand daughter of Muthusami Gounder, claimed 1/3 share in Muthusami Gounder's property. After the death of Muthusami Gounder, the defendants are running the bus services and appropriated the entire income. Therefore, the plaintiff caused a legal notice on 10.07.2008 demanding for rendition of accounts. For which the defendants had replied that Muthusami Gounder bequeathed all his assets including the share in the 5^th defendant-firm to them and repudiated the claim of the plaintiff. It is the submission of the plaintiff that said Muthusami Gounder did not bequeath any property to the defendants 1 and 2. If there be any such document purporting to be the Will of Muthusami Gounder such document or documents can only be rank one forgeries. Hence, the plaintiff has come forward with a suit for rendition of accounts for the income derived on 5^th defendant's Firm and payment of her 1/3 share of 13.3% therein to the plaintiff by the defendants 1 and 2.

5. The said suit was resisted by the 3^rd defendant, who is the maternal uncle of the plaintiff by filing the separate statement. Wherein he disputes the claim of the plaintiff.

6. However, the partnership firm filed a separate detailed counter statement through its Managing Partner namely the 2^nd defendant. According to this defendant, before constituting the partnership firm, the Bus Transport has been operated by Muthusami Gounder and that on 10.12.2004 late Muthusami Gounder executed a registered Will bequeathing his buses as well as the permits to the defendants 1 and 2. Subsequently, the said proprietorship concern was converted to a Partnership firm, which factum was also known to the father of the plaintiff and the 4^th defendant. It is also the contention of this defendant that, when the defendants dispute the right of the plaintiff, mere filing of the suit for rendition of accounts without seeking the relief of declaration is not maintainable. Hence, prayed to dismiss the suit.

7. Before the Trial Court, the plaintiff examined one witness as PW1, who is the Power of attorney holder and father of the plaintiff and marked 7 documents as Exs.A1 to A7. On behalf of the defendants, 3 witnesses were examined as DW1 to DW3 and marked 4 documents as Exs.B1 to B4.

8. The Trial Court, after having considered the oral and documentary evidence found that, in view of the execution of the Will-Ex.B1, the entire share of the deceased Muthusami Gounder fell upon the defendants 1 and 2,