A joint Will can be revoked by one testator during their lifetime, distinguishing it from a mutual Will which requires mutual agreement for revocation.

JUDGMENT :

R.N. Manjula, J.

This Second Appeal has been filed to set aside the judgment and decree of the learned Additional District Judge, Tirupur dated 31.10.2014 made in A.S.No.57/2012 reversing the judgment and decree of the learned Additional Subordinate Judge, Tirupur dated 09.03.2012 made in O.S.No.97 of 2011.

2. Heard Mr.V.Raghavachari, learned Senior Counsel for the appellant and Mr.B.Arvind Srevatsa, learned counsel for R2 to R4 and perused the materials available on record.

3. The Appellant is the plaintiff who has filed a suit for partition and separate possession of 1/2 share in the suit property. The Trial Court had decreed the suit as prayed and passed a preliminary decree. On the First Appeal preferred by the defendant, the First Appellate Court has allowed the First Appeal and reversed the judgment and decree of the Trial Court and dismissed the suit. Aggrieved over the same, the plaintiff has filed this Second Appeal.

4. The short facts pleaded in the plaint are as follows:

The plaintiff and the defendant are siblings. They are the children of Thiruvanjiyam and Josephine and the suit properties have been purchased by the parents of the parties to the suit by virtue of a sale deed dated 16.03.1985. The parents of the plaintiff and the defendant have also got two more daughters and two more sons other than the plaintiff and the defendant. One of the daughters by name Mary Regina Jeevan died. During the life time of Josephine and Thiruvanjiyam, they executed a Will dated 16.05.1985 in favour of the defendant and bequeathed the suit properties to him. Thiruvanjiyam died on 18.05.1985. The Will has been executed jointly by both the parents of the defendant and they had equal rights in the suit properties and after the demise of the father, his 1/2 share has to be inherited by the defendant as per the Will. The mother Josephine had revoked the testament and thereafter, she had executed a settlement deed in favour of the plaintiff. From then onwards, the plaintiff had accepted the property offered as settlement by her mother and she is in enjoyment of the same. The defendant is residing in rest of the 1/2 portion.

4.1. As per the Will, in respect of other 1/2 share, the defendant is in enjoyment. The plaintiff has got 1/2 share in the suit property. There are four tenants in the suit property. The defendant is elder to the plaintiff. There was some misunderstanding arose between the plaintiff and the defendant and the defendant tries to take away the whole of the suit property. On 21.04.2008, the plaintiff applied for the mutation of name in her favour based on the settlement deed in respect of the house tax and water tax. The defendant being a Superintendent in the Customs Department used his power and money to disturb the plaintiff's peaceful possession and enjoyment in the suit property. Hence, she filed the suit.

5. The averments made in the written statement filed by the defendant are as follows:

It is true that the properties are originally belonged to Thiruvanjiyam and Josephine and that the plaintiff and the defendant are the legal heirs of Thiruvanjiyam and Josephine. On 16.05.1985 the defendant's parents Thiruvanjiyam and Josephine had executed a Will. The Will is a mutual Will and it is not a joint Will. It appears from the recitals of the Will that both parties to the Will are the beneficiaries. After the demise of the father of the parties, the mother was in enjoyment of the suit property. The mutual Will cannot be revoked subsequent to the death of one of the executant of the