C O M M O N J U D G M E N T

(Judgment of the Court was made by R.SUBRAMANIAN, J.)

The defendant in O.S.No.25 of 2009 is on appeal. The said suit was launched by the plaintiff seeking half share in the suit properties contending that the suit properties belonged to one K.P.Ramasamy, who died on 13.10.2008. His wife Kamatchi pre-deceased him on 19.04.2003. The plaintiff and the defendant, who being the daughters were the only heirs. In the course of the pleadings, the plaintiff also claimed that there was a joint Will executed by K.P.Ramasamy and his wife Kamatchi on 19.05.1997 which was marked as Ex.A1. However no effort was taken to prove the said instrument. It was also the claim of the plaintiff that the said Ramasamy had executed a registered Will on 13.04.2007 bequeathing one of the properties viz., Andavar Mills in the ratio of 60 and 40 between the defendant and the plaintiff. The said Will was neither produced in Court nor any attempt made to prove the same. A third registered Will said to have been executed by Ramasamy on 02.07.2007 was marked as Ex.A2 and the plaintiff almost based her claim on the said Will.

2. The defendant resisted the suit contending that the deceased Ramasamy had executed a settlement deed on 10.10.2008 and he died on 13.10.2008 before the same could be registered. The defendant had in fact applied for registration of the instrument under Rule 58 of the Registration Rules on 10.12.2008. The Sub-Registrar, Rasipuram had issued notices to the plaintiff on 19.12.2008 calling upon her to appear for enquiry. It was also contended that the plaintiff had filed her objections to the registration of the said instrument on 30.12.2008 and upon objections the enquiry notice was issued on 04.02.2009. It is thereafter the plaintiff had chosen to file the present suit on 14.03.2009. It was therefore the contention of the defendant that as per the settlement deed one item of the suit properties had been settled on her absolutely and therefore the plaintiff is not entitled to a share of the said item. As regards other properties are concerned, the defendant would contend that they are to be divided equally between the plaintiff and the defendant as per the Will dated 02.07.2007.

3. On the above pleadings the learned trial Judge framed the following issues:-

1.Whether the plaintiff is entitled partition of ½ share in the properties?

2.Whether the plaintiff is entitled to permanent injunction restraining the defendant from proceeding with the Registration of settlement deed dated 10.10.2008 is true and valid?

3.Whether the Settlement deed dated 10.10.2008 is true and valid?

4.Whether the Will dated 02.07.2007 is true and valid?

5.To what relief if any the plaintiff is entitled to?

4. At trial the plaintiff was examined as PW1 and one Somu was examined as PW2. The learned trial Judge concluded that the settlement deed dated 10.10.2008 has not been accepted by the settlee viz., the defendant and therefore it is not valid. On the said conclusion, the learned trial Judge decreed the suit as prayed for. He also recorded that the Will dated 02.07.2007 has not been disputed. Aggrieved the defendant is on appeal.

5. Before proceeding further, we must record certain proceedings that had taken place in the course of the suit. Along with the suit an application was filed by the plaintiff seeking an order to send for the settlement deed dated 10.10.2008 from the Sub-Registrar, Rasipuram to the civil Court. It should be pointed out that at that point of time the enquiry regarding registration of the settlement deed under Rule 58 of the Registration Rules was pending. During the pendency of the said application, the petitioner before the sub-Registrar viz., the defendant in the suit was examined and one of the attesting witnesses to the document was also examined. It is at that stage, on 10.08.2009, the application in I.A.No.57 of 2009 was allowed exparte. The defendant promptly filed two applications in I.A.Nos.268 and 269 of 2009 to s