J U D G M E N T

This Second Appeal has been preferred against the judgment and decree passed in A.S.No.154 of 2003 dated 19.03.2004 by the learned I Additional District Judge, Tirunelveli, partly allowing the appeal preferred against the judgment and decree passed in O.S.No.351 of 1998 dated

03.04.2003 by the learned II Additional Sub Judge, Tirunelveli.

2.The first defendant is the appellant before this Court. The plaintiffs / respondents 1 and 2 herein filed cross appeal against the reversal of the judgment and decree made by the Lower Appellate Court setting aside the decree and judgment passed in O.S.No.351 of 1998.

3.The parties are called as per their litigative status in the Suit.

The Suit was filed for partition of the property. The parties are children of one Arumugam Pillai and Rajammal. The defendants 1 and 2 are the brothers, defendant 3 is the sister of the plaintiffs.

4.According to the plaintiffs, their parents Arumugam Pillai and Rajammal died intestate leaving them as legal heirs of the properties. The plaint First Schedule of the property belong to Arumugam Pillai, plaint Second Schedule owned by Rajammal and the plaint Third Schedule are the movables. The father of the parties Arumugam Pillai died intestate on 21.12.1997 and the mother died intestate on 14.01.1998 within 24 days from the date of her husband's death. The plaintiffs demanded equal shares of the suit schedule properties from the defendants. Since they did not cooperate for effecting partition, they issued a legal notice dated 18.02.1998. Though it was acknowledged by the defendants, no reply notice was given. Therefore, the plaintiffs filed the Suit for partition.

5.The defendants filed written statement that the suit schedule properties are self acquired properties of their parents and Arumugam Pillai and Rajammal were not at all owning the jewels and other movable items mentioned in the plaint Third Schedule. The claim of the plaintiffs that their parents died intestate is false and on the other hand, his father Arumugam Pillai has executed a WILL on 31.10.1997 bequeathing his properties mentioned in plaint First Schedule in favour of the defendants 1 and 2 and their mother Rajammal also executed a registered WILL on 10.08.1992 bequeathing the plaint Second Schedule properties in favour of her sons viz., defendants 1 and 2. They are in possession and enjoyment of the properties and collecting rent from the buildings for themselves. The plaintiffs are not having any joint right and not in joint enjoyment over the plaint I and II Schedule properties. Since the plaintiffs stated that they will not litigate, the defendants have not issued any reply notice.

6.Based on the pleadings, the Trial Court framed seven issues and decreed the Suit for partition. Against which, the first defendant preferred an appeal and also filed an interlocutory application to receive additional documents. The Lower Appellate Court after framing appropriate points for consideration, confirmed the finding with respect to the WILL executed by the father and set aside the finding with respect to the WILL executed by the mother and allowed the appeal in part. While allowing the appeal, the interlocutory application filed for receiving additional documents was also dismissed. Aggrieved over the same, the first defendant preferred the above Second Appeal and the plaintiffs preferred the cross appeal.

7.Heard the submissions made on either side.

8.On 04.11.2004, the above Second Appeal is admitted on the following substantial question of law: -

“Whether the Courts below are right in holding that Late Arumugam Pillai did not execute the WILL Ex.B9 by comparing the signature of the executant when one of the attesting witness was examined to prove the execution?”

9.The admitted facts are as follows :-

10.The parties are children of Arumugam Pillai and Rajammal.

Arumugam Pillai is the owner of the properties mentioned in plaint First Schedule and Rajammal is the owner of the properties mentione