JUDGMENT

The appellant herein is the fourth defendants in suit O.S No.

151 of 2009 on the file of the Sub Judge, Perunthurai, filed by the first respondent herein/plaintiff for the relief of partition claiming ¼ share in the A or B schedule properties, by contending that suit properties are ancestral properties belonging to his father Muthusamy Gounder and died intestate leaving behind plaintiff and her brothers and sisters who are first, second and third defendant herein as his legal heirs, fourth defendant is son of the first defendant claiming right over the B schedule property by contending that his grandfather Muthusamy Gounder executed Will on 14.12.1994 in favour of him after his demise he became the absolute owner of the B schedule property thereby denied the plaintiffs right over the B schedule property and the second and third defendant remains exparte, first defendant contested the case stating that his sisters were got married long back which prior to 1986 and the ancestral properties were enjoyed by him along with his father Muthusamy Gounder. While so, 14.12.1994 there was family partition wherein half share of the properties was allotted to Muthusamy Gounder which is shown as A schedule property herein and B schedule property was allotted to the first defendant. Thereafter, Muthusamy bequeathed the property to fourth defendant through registered Will, so the plaintiff is not entitled to claim any share in A schedule property, so first and fourth defendants totally denied the plaintiffs right over the A and B schedule property.

2. Before the Trial Court both the parties adduced their evidence and documents, after considering that the Trial Judge framed eight issues with additional issues, on considering the evidence on record held that with regard to truthfulness and genuineness of the Will the issue was decided against the fourth defendant who was the beneficiary of the said Will concluded that Will is surrounded by Suspicious circumstances and the same was obtained by mis-representation thereby concluded that B Schedule properties are also ancestral property and allotted to the plaintiff's father in which plaintiff is having ¼ share. With regard to A schedule properties Trial Court accepted that based upon the partition it was allotted to the share of the first defendants which was not much attacked by the plaintiff, With regard to A schedule properties plaintiff's claim was rejected since it belongs to the first defendant based upon the partition deed dated 14.12.1994.

3. Aggrieved and dissatisfied over the Judgement of the Trial Court with regard to B schedule properties fourth defendant preferred an appeal and with regard to A schedule properties the plaintiff preferred an appeal in A.S No. 12 and 47 of 2015 respectively on the file of the District Court, Erode. Wherein, the lower appellate Court independently analysed the facts and evidences confirmed the findings of the Trial Court and dismissed both appeals.

4. Challenging the said findings fourth defendant preferred this second appeal by submitting that Court below failed to consider that the Will was proved by examining the attesting witness and their evidence was cogent and through which he proved the Muthusamy Gounder's/testator's state of mind at the time of the execution of the Will but the same was not appreciated by the Court below. Besides, plaintiff had knowledge about the partition deed as well as the Will Ex.B19 but she filed the suit without any such particulars, her approach to the Court is not with clean hands thereby sister is not entitled for any relief. But the Court below instead of decline to grant relief in favour of the plaintiff allotted the share in suit property as such is unjust and un-fair and liable to be set aside. Hence, prayed to dismiss the appeal. This Court admitted the appeals with the following substantial questions of law:

1.Whether the plaintiff/first respondent is entitled in law to seek for the alternative relief in a s