J U D G M E N T

The third defendant in O.S.No.56 of 2011 on the file of the District Munsif Court, Uthamapalayam is the appellant.

2. The suit was filed by the plaintiff seeking a declaration that grant of a joint patta in the name of the plaintiff and the third defendant is invalid, declaration that the plaintiff is the absolute owner of the property and for mandatory injunction directing the defendants 1 and 2 to transfer the revenue records for the suit property in the name of the plaintiff.

3. According to the plaintiff, the suit property belonged to his paternal grand mother Krishnammal, who died in the year 2010. The plaintiff is the son of one Jeyachandran, son of Krishnammal. The third defendant is the other son of Krishnammal. Contending that both Jeyachandran and the third defendant ignored Krishnammal and it was the plaintiff who was taking care of her and out of love and affection she had towards him, she had bequeathed the suit property to him under the Will dated 20.10.2009. The plaintiff sought for the declaratory relief. The plaintiff had also stated that there was some typographical error in the Will, where service connection number was shown as 212 instead of 213 and survey number of the property was shown as 503/1D instead of 503/1B.

4. The suit was resisted by the defendants contending that the suit property did not belong to Krishnammal absolutely and it was a joint family property purchased by the third defendant, his brother and his father in the name of Krishnammal. It was contended that the Will executed by Krishnammal is not true and valid. The mistakes in the Will pleaded by the plaintiff are also disputed.

5. At trial, the plaintiff was examined as P.W.1 and one Muniyandi, attesting witness to the Will was examined as P.W.2. Exts.A1 to A.11 were marked. One Mannavan was examined as D.W.1 and one Saravanapriya was examined as D.W.2. No documentary evidence was let in on behalf of the defendants.

6. The trial court, upon consideration of the evidence on record, concluded that the plaintiff has proved execution and attestation of the Will dated 20.10.2009. It also agreed with the claim of the plaintiff that there were certain mistakes in the Will. The claim that the property was purchased by the third defendant, his brother and father was rejected by the trial court for lack of evidence. On the above conclusions, the trial Judge decreed the suit as prayed for.

7. Aggrieved, the third defendant preferred an appeal in A.S.No.13 of

2014. The learned appellate Judge, upon re-consideration of the evidence, concurred with the findings of the trial court and dismissed the appeal.

Hence, the Second Appeal.

8. The following questions of law have been framed by this Court at the time of admissions:

i)Whether the courts below had correctly framed the issues, ignoring the available evidence and testimony of the witness?

ii)Whether the courts below are right in determining the points for consideration from correct stand point and proper perception as required under Order 41 of the Civil Procedure Code?

iii)Whether the courts below are right in granting a decree for declaration and mandatory injunction to transfer the name in the patta as against the provisions under Section 14 of the Patta Pass Book Act?

iv) Whether the courts below are right in granting a decree since the plaintiff not added the proper parties to the suit?

v) Whether the plaintiff proved the Will dated

20.10.2009 as per Section 68 of Evidence Act?

9. Mr.Senthil, learned counsel appearing for the appellant would vehemently contend that the appellate court ought to have given an opportunity to the appellant/third defendant to let in evidence. According to him, the counsel who appeared for the third defendant before the trial court had made an endorsement without instructions from the third defendant and therefore, the appellant/third defendant may be given a chance to let in further evidence. The learned counsel would further contend that the plaintiff has not pro