The trial Court erred in assessing the Will's validity and misallocated the burden of proof, ruling that the plaintiff is entitled to 1/4 share as all heirs inherit equally under applicable laws.

JUDGMENT :

RMT. TEEKAA RAMAN, J.

1. The plaintiff is the appellant herein and has filed this first appeal challenging the judgment and decree dated 29.06.2018 passed in O.S.No.3380 of 2013 by the learned XVIII Additional Judge, City Civil Court, Chennai.

2. For the sake of convenience and clarity, the parties are referred to as per their litigative status before the trial Court.

3. The plaintiff filed a suit in O.S.No.3380 of 2013 for partition claiming 1/4 share in the suit property. There are two schedules in the suit property. Murugesan @ Alex Annasamy and Saraswathi are husband and wife. The plaintiff, second defendant and third defendant are the sons of Murugesan @ Alex Annasamy. Murugesan @ Alex Annasamy is said to have executed a Will dated 10.11.2018, whereby, he had bequeathed the suit property giving life estate to his wife/first defendant and his sons/second and third defendants and the plaintiff. The plaint further proceeds that when the father of the plaintiff was in weak condition and not of sound mind, the defendants 2 and 3, who are the brothers of the plaintiff, have obtained Ex.A1/Will from their father, whereby, the unencumbered property, which is in possession of the second and third defendants, was allotted to them, whereas, the litigative property, encumbered property and the property in hands of the defendants 2 and 3 were carved out, projecting as if they were bequeathed to the plaintiff after two generations. Hence, he filed a suit for partition.

4. The written statement was filed by the first defendant/mother and it was adopted by the defendants 2 and 3 in the suit.

5. The trial Court appears to have framed the following issues:-

"1. Whether the plaintiff is entitled to get 1/4 th share in the suit property?

2. If so whether the plaintiff is entitled to get 1/4 th share in the suit property?

3. Whether the plaintiff is entitled for the relief of declaration that Will dated 10.11.2018 as shame and nominate, void abinitio.

4. Whether the plaintiff is entitled for permanent injunction against the defendants 1 to 3?

5. Whether the plaintiff is entitled for mandatory injunction against the defendants 4 to 8?

6. Whether the Will dated 10.11.2018 executed by Late Murugesan is true and valid and enforceable? 7. To what other relief is plaintiff entitled to?"

6. On the side of the plaintiff, the plaintiff was examined himself as P.W.1 and Ex.A1 to Ex.A8 were marked. On the side of the defendants, the first defendant was examined herself as D.W.1 and Ex.B1 was marked.

7. On consideration of both oral and documentary evidence, the trial Court has held that the suit property is a separate property of S.Murugesan @ Alex Annasamy and Ex.A1/Will was not sham and nominal one, since the testator was Christian and as per the Indian SUCCESSION ACT , the Will executed by the Christian need not be probated and therefore, even in the absence of any witness being examined by the defendants, Ex.A1 is held to be true and genuine, and accordingly, held that Ex.A1/Will is valid since the testator held the property as separate property and bequeathed under Will and the Will was proved by legal presumption and the plaintiff is not entitled to the relief of partition, and the suit was dismissed. Hence, this appeal.

8. Heard Mr.K.V.Sundararajan, learned counsel appearing for the appellant/plaintiff and Mr.A.M.Packianathan Easter, learned counsel appearing for the respondents