IMPORTANT POINT
Secondary evidence – Neither mere admission of a document in evidence amounts to its proof nor mere making of an exhibit of a document dispense with its proof, which is otherwise required to be done in accordance with law.

JUDGMENT

This regular appeal under Section 96 Code of Civil Procedure is directed against the decree and judgment in O.S.No.527 of 1996 dated 07.04.2004 on the file of the Court of learned I Additional Senior Civil Judge, Vijayawada.

2. The defendant Nos.1 and 2, before the trial Court, are the appellants. The respondent No.1 herein is the plaintiff and respondent Nos.2 to 21 are defendant Nos.3 to 21 before the trial Court.

3. The 1st respondent herein instituted the suit for partition and separate possession of 1/5th share of the plaint schedule property after dividing into five equal shares by meets and bounds, for past and future profits from 1993 onwards.

4. For the sake of convenience, the parties hereinafter referred as they arrayed before the trial Court.

5. Before adverting to the material and evidence on record and nature of findings in the judgment of the trial Court, it is necessary to scan through the case pleaded by the parties in their respective pleadings.

6. The case of plaintiff in brief in the plaint was as follows:—

(i) 1st defendant is mother, 2nd defendant is brother and defendant Nos.3 and 4 are sisters of the plaintiff. Defendant Nos.5 to 21 are the tenants in the plaint schedule property. Originally the property was the self-acquired properties of her grand-father by name A.P.S.R.Ramswamy Nadar and he died intestate on 16.06.1964 leaving his wife Vaduvammal, daughters Seethamahalakshmi Ammal/Kuvammal and son S.R.Thillai Kaliyappan. As such they got equal shares in the properties left by late Ramaswamy Nadar.

(ii) Subsequently, Vaduvammal died intestate. Sisters of Thillai Kaliyappan, who is father of the plaintiff, relinquished their rights in the properties. Therefore, Kalliyappan is the absolute owner of the suit schedule property and he was in possession and enjoyment of the same till his death on 14.05.1976. He never executed any document in favour of any person during his lifetime. As such, the plaintiff is entitled 1/5th share in the plaint schedule property. She demanded the defendants for partition, but in vain. Thereby, she issued a notice on 16.08.1996. In-turn, the 1st defendant gave a reply with false allegations. Hence, filed the suit.

7. The defendant No.1 denying the allegations in the plaint except the relationship between the parties to the suit and contending in the written statement, which was adopted by the 2nd defendant by filing a memo before the trial Court, as follows:—

(i) After death of Ramaswamy, his wife and children partitioned the properties under a partition deed dated 15.07.1964. In that partition, Kaliyappan got western part in item No.1 of the plaint schedule property and eastern half of the item No.1 fell to the share of his mother Vadivammal. Subsequently, Vavivammal executed a registered settlement deed dated 04.07.1966 settling the property in favour of his son Kaliyappan. Item No.2 of the suit schedule property of Ramaswamynadar was settled in favour of his son Kaliyappan through a registered settlement deed dated 17.05.1962.

(ii) Item No.3 of plaint schedule property is Ac.2.56 cents covered under R.S.No.223/1 of Gunadala Village, out of which Smt.Vadivammal got Ac.1.03 cents on the eastern side, Kaliyappan got Ac.1.03 cents on northern side, Mahalakshmi Ammal got Ac.0.25 cents on north of Kaliyappan’s plot and Kuruvammal got Ac.0.25 cents on north of Mahalakshmi Ammal’s plot in the said registered partition. Subsequently, Kaliyappan purchased an extent of Ac.0.78 cents from his mother Vaduvammal under a registered sale deed dated 14.11.1966.

(iii) The Kaliyappan was the absolute owner, is in possession and enjoyment of the item Nos.1 to 3 of suit schedule property. During his lifetime, he executed a Will on 23.07.1975 in a sound and disposing state of mind with his own handwriting in his mother tongue Tamil and the said Will was attested by his close friends Sri N.Rajaraman and Sri N.P.R.Vital of Vijayawada bequeathing all his properties in favour of h