JUDGMENT

Against the order of remand, the 5th defendant came up. It is a suit for partition of the share, which was allotted to the share of one Anitha under Ext.A1 partition. The suit was filed after her death.

2. It was contested by the 5th defendant based on a clause incorporated in the partition, Ext.A1, by which the property, which was allotted to the share of Anitha would ultimately go to the 5th defendant on her death. Admittedly she died unmarried and issueless and this might be the reason why such a clause was incorporated in the partition. The partition was signed by Anitha along with all the sharers and it was attested by two attesting witnesses.

3. The first appellate court set aside the decree of dismissal of the suit on the ground that the clause incorporated in Ext.A1 giving an ultimate deposition of property allotted to the share of Anitha to the 5th defendant on her death constitutes a testament, hence requires proof in accordance with the mandate under Section 68 of the Evidence Act.

4. When the document is a composite document i.e. a partition in the family and also a testament in respect of one of the sharer, the document can be proved by either of the way availab