The father of the coparceners had no right to bequeath ancestral property via Will. Wills are invalid unless proven in accordance with statutory requirements.

JUDGMENT :

P. Vadamalai, J.

This Appeal is directed against the judgment and decree, dated 12.12.2012 passed in O.S.No.203 of 2012 on the file of the learned Principal District Judge, Virudhunagar District at Srivilliputtur.

2. The appellant is the plaintiff and the respondent is the 2^nd defendant in O.S.No.203 of 2012 on the file of the learned Principal District Judge, Virudhunagar District at Srivilliputtur. The appellant/plaintiff filed the suit for partition of allotment of ½ share in the suit properties.

3. For the sake of convenience, the parties are referred to as per their rank before the trial Court.

4. The brief facts are as below:

(a) The case of the plaintiff:- The plaintiff and the 2^nd defendant are the son and daughter of the 1^st defendant/Gurusamy Nadar (since died). The suit properties are ancestral properties of the plaintiff and the defendants. They were under joint possession and no partition took place between them. The plaintiff went to his father, 1^st defendant and demanded partition of the suit properties. The 1^st defendant was not willing for partition and gave out that he had executed two registered Wills, dated 13.02.2004, in favour of the plaintiff and the 2^nd defendant. As per Will, the 1st defendant bequeathed the suit 1^st and 2^nd schedule properties in favour of the plaintiff and the suit 3^rd and 4^th schedule properties in favour of the 2^nd defendant. The 1^st defendant specifically mentioned in the Will that the suit properties are ancestral properties. Hence, he was estopped from executing any Will as he had only a limited share over the properties. Hence, the plaintiff filed a suit seeking for ½ share. After filing of the suit, the 1^st defendant died on 22.12.2010.

(b) The case of the defendants:- It is true that the suit properties are ancestral properties of the plaintiff and the 2nd defendant, who is the sister of the plaintiff. Their father executed two registered Wills on 13.02.2004 in respect of suit properties, thereby, the plaintiff is entitled to items 1 and 2 of the suit properties and the 2nd defendant is entitled to items 3 and 4 of the suit properties. The plaintiff had knowledge of Will on the date of execution since the plaintiff and the 2nd defendant are attestors to the Will and they have signed the Will. Their father died on 22.12.2010 and he had not cancelled the Will or executed any subsequent Will. Hence, the Will came into force. After that, the plaintiff has been in possession of suit items 1 and 2 and the 2^nd defendant has been in possession of suit items 3 and 4. Only to harass the 2^nd defendant, the plaintiff has filed the suit, hence, the suit may be dismissed.

5. The trial Court framed the following issues upon the pleadings of both parties.

(1) Whether the plaintiff is entitled to 1/2 share in the suit properties, as the suit properties are ancestral properties?

(2) Whether the parties have to enjoy the properties as per Will, dated 13.02.2004, as contended by the 2nd defendant and the plaintiff is not entitled ½ share in the suit properties?

(3) Whether the Will, dated 13.02.2004, is proved as per law?

(4) To what other relief the plaintiff is entitled to?

6. Before the trial Court, during trial, the plaintiff was examined himself as P.W.1 and marked the Will as Ex.A.1. On the defendants' side, the 2nd defendant was examined as D.W.1 and no document was marked.

7. On appreciation of oral and documentary evidences adduced on either side and also considering the argument of both side, the trial Court has passed judgment on 12.12.2012 decreeing that the plaintiff is entitled items 1 and 2 and the 2^nd defendant is enti