IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 07.11.2022 CORAM :

THE HONOURABLE MR. JUSTICE S.S. SUNDAR AND THE HONOURABLE MRS. JUSTICE N. MALA A.S.No.1213 of 2015 Alamelumangaiammal ... Plaintiff/Appellant Vs.

1.S.Murugesan

2.Vasanthi ... Defendants/Respondents Prayer : Appeal Suit filed under Section 96 of Code of Civil Procedure against the judgment and decree of the learned I Additional District Judge, Tiruppur in O.S.No.157 of 2012 dated 24.06.2015.

For Appellant : Mr.J.Franklin For R1 and R2 : No appearance

J U D G M E N T

(Judgment was delivered by S.S. SUNDAR, J.

The plaintiff in the suit in O.S.No.157 of 2012 on the file of the First Additional District Court, Tiruppur, has filed this Appeal Suit as against the judgment and decree dated 24.06.2015 in O.S.No.157 of 2012. The plaintiff and defendants in the suit are the appellant and respondents respectively.

2.The suit in O.S.No.157 of 2012 was filed by the plaintiff for partition of her ½ share in the suit property and for other consequential reliefs. The case of the plaintiff is that the suit property originally belonged to her grand-father by name Thiru.Peria Ramasamy Gounder by virtue of a registered sale deed dated 29.03.1937. After the death of Thriu.Peria Ramasamy Gounder, his wife Smt.Devathal and two sons by name K.R.Subbaian and K.R.Appachiappan and one daughter Smt.Deivathal succeeded to the property. In a partition deed dated 05.05.1976, an extent of 3.12 Acres with reference to specific boundaries in S.F.No.129 of Thottipalayam Village was allotted to the plaintiff's fahter by name K.R.Subbaian. The plaintiff and first defendant are the son and daughter of Thiru.K.R.Subbaian. It is stated that the plaintiff's father K.R.Subbaian settled an extent of 1 Acre in S.F.No.129 of Thottipalayam Village in her favour by virtue of registered settlement deed dated 31.10.1979. It is further stated that her father along with first defendant sold an extent of 90 cents by a sale deed dated 19.01.1995. Now the plaintiff has come forward with the suit that her father K.R.Subbaian on 22.06.2003 died leaving behind him the plaintiff, first defendant and her mother who died intestate on 20.05.2004. The plaintiff also stated that the plaintiff and the first defendant were in cordial terms for some time and a suit for specific performance filed by them jointly was also pending before the Additional District Court, Fast Track Court, Tiruppur, which was disposed of on 31.03.2010. Stating that the plaintiff is in joint possession and enjoyment of the suit property along with the first defendant and the first defendant failed to render account for the money which he received by way of rent, the suit came to be filed for partition. The suit was contested by the defendants mainly on the ground that the property was bequeathed by their father K.R.Subbaian in favour of the first defendant by way of registered Will dated 31.10.2001, registered as Doc. No.190 of 2001 before the Joint Sub Registrar-I, Tiruppur. The Will consists of 'A' and 'B' schedule. Though 'A' schedule was allotted to the defendant's mother by name Tmt.Dhanalakshmi Ammal for her life it should devolve upon first defendant after her life. Suit 'B' schedule property which is an extent of 93½ cents was allotted to the defendants as per the Will. Therefore, the only defence taken by the defendant in the written statement was on the basis of the Will stated to have been executed by his father in his favour out of love and affection. The trial Court after framing necessary issues held that the Will under Ex.B-14 is valid and held that the first defendant who is enjoying the property as per the Will. Though the plaintiff/appellant relied on a few circumstances and doubted the genuineness of the Will, the trial Court after considering the entire evidence on record came to the conclusion that the Will is the last Will of the testator executed out of free will and volition in favour of the first defendant. One of the attesting wi