The interpretation of the Will was upheld, establishing that all male heirs hold equal but fractional shares, and estoppel applies to the plaintiff's new claim for a larger share after previously accepting a smaller one.

JUDGMENT :

T.V. THAMILSELVI, J.

The appellants, who are the defendants 1 and 3 to 5 in the suit in O.S.No. 138 of 1997 on the file of Subordinate Court, Tiruppur,which was filed by the 1^st respondent/plaintiff seeking for the relief of partition claiming half share in the suit property and on considering the evidence on record, the trial court decreed the suit granting 1/6 the share in favour of plaintiff. Against which, he preferred an appeal in A.S.No. 124 of 2005 and the same was allowed in favour of plaintiff by setting aside the findings of trial court. Now, challenging the reversal findings of the first appellate judge, the defendants 1 and 3 to 5 have preferred this Second Appeal.

2. For the sake of convenience, the parties are denoted as per the ranking in the suit before the trial court.

3. The 1^st respondent herein is the plaintiff, who filed a suit against the appellants/defendants for the relief of partition claiming half share in the suit property. The suit was contested by the defendants 1 to 5 stating that as per the Will dated 12.11.1952, the plaintiff and the defendants 1 to 5 are equally entitled to 1/6^th share in the suit property and he is not entitled to claim half share in the suit property.

4. Before the trial court, both parties have adduced evidence and based on that, the trial court finally held that as per the Will executed by the original owner, Marakkal, dated 12.11.1952, each defendants 1 to 5 entitled to 1/6^th share. Accordingly, the suit was partly allowed by granting 1/6^th share. Challenging the said findings, the plaintiff preferred appeal suit in A.S.No. 124 of 2005, wherein the first appellate judge independently analysed the facts and evidence and finally held that the plaintiff, being son of Ramasamy entitled half share and remaining half share goes to another branch of Subramaniam. Accordingly, the plaintiff is entitled for half share and remaining half share goes to the legal heirs of Subramaniam, thereby the trial court findings was set aside and the appeal was allowed by granting the relief as prayed for in favour of plaintiff. Challenging the said findings of the first appellate court, the defendants preferred this Second Appeal on submitting the following grounds :-

(i) The lower appellate court ought to have dismissed the appeal on the sole ground that the Will Ex.A1 is very clear and unambiguous, since the testator has clearly bequeathed the suit property to all the male heirs of Subramaniam and Ramasamy.

(ii) The lower appellate court ought to have seen that the recitals in the Will, Ex.A1 do not imply that the male heirs should take per capita and not per stirpes.

(iii) The lower appellate court ought to have seen that the plaintiff is estopped from making any claim contrary to his acceptance in the action in the sale deed Ex.B2, wherein a portion of the property covered under the Will was sold to one Devi. At that point of time, the sale consideration was taken equally by all the 6 male heirs, with the plaintiff containing his 1/6^th share of the sale consideration by a banker's cheque.

(iv) The lower appellate court ought to have seen that the plaintiff cannot be heard to let in evidence contrary to the recitals in the registered document, Ex.B2 Sale deed.

(v) The other reasons given by the lower appellate court for reversing the well considered judgment and decree of trial court are untenable in law.

5. Considering his submissions, this Second Appeal is admitted on the following question of law :-

(1) Whether the judgment of lower appellate court is vitiated in that it has misinterpreted the Will