Court upheld the dismissal of applications to mark a will due to lack of justification for reopening evidence.

C O M M O N O R D E R

The defendants 2, 4 and 5 are the revision petitioners before this Court. They seek to challenge the order passed by the Principal Subordinate Judge, Namakkal in I.A.Nos.11 & 12 of 2024 in OS.No.327/2015.

2. I.A.No.11/2024 has been filed for recalling D.W.2 to mark the copy of a Will dated 09.07.1974 executed by the 1st defendant's father.

3. I.A.No.12/2024 has been filed under Order 8 Rule 1 Sub Rule 3 of CPC seeking leave of the Court to file documents belatedly.

4. The facts of the case are hereinbelow briefly set out:-

5. The plaintiffs had filed the suit O.S.No.327/2015 on the file of the above Court seeking a partition and separate possession of the plaintiffs’ 6/16 share in the suit schedule property.

6. The suit A schedule property is the ancestral property of the

2^nd plaintiff's grandfather, Veerappa Gounder. The B schedule property has been purchased by the said Veerappa Gounder from out of the consideration received by him for the release deed executed in favour of his father Koundai Gounder. Therefore, it is the case of the plaintiffs that the properties are the ancestral properties of the 2^nd plaintiff's grandfather Veerappa Gounder. The father of the 2nd plaintiff, Muthusamy and the father of the 1st defendant, Karuppan are the sons of Veerappa Gounder. When the 2^nd plaintiff was 3 years old, Muthusamy had deserted the plaintiffs and started living with the 2nd defendant. On 09.07.1974 Koundai Gounder, the great grandfather of the 2nd plaintiff, had executed a Will bequeathing all the properties on nd Karuppan, the father of the 1st defendant. The 2 plaintiff's grandfather, Veerappa Gounder had not executed any release deed in favour of Koundai Gounder and therefore the Will would not bind the share of the 2nd plaintiff's father.

7. There was no partition between the 2^nd plaintiff's paternal grand father, Veerappan Gounder, his father Muthusamy or the 1st defendant's father Karuppan. Karuppan Gounder passed away on 20.06.1996 and the 2nd plaintiff's father, Muthuswamy passed away on 06.06.2007. Despite the request for partition, the defendants had not come forward to enter into a partition and therefore the plaintiffs had filed the above suit.

8. The 1st defendant had filed a written statement denying the Will dated 09.07.1974. The 1st defendant admitted that the A schedule property was the ancestral property of the 2nd plaintiff and herself. She would submit that the release deed dated 14.05.1940 should be presumed to be a release in favour of the joint family. It was from out of the income of the ancestral property that Veerappa Gounder had purchased the B schedule property on 19.05.1957 and the property was being enjoyed as a joint family property.

9. She would further submit that the 2nd defendant is not the legally wedded wife of the 2nd plaintiff's father, Muthusamy and therefore she has no right to claim a share in the ancestral property. She would ultimately submit that the 2nd plaintiff's father Muthusamy was entitled to a half share and the 1st defendant's father Karuppan entitled to the other half share. After the birth of the 2nd plaintiff, Muthusamy had a 1/4th share in the suit schedule property and the 2nd plaintiff had the other 1/4th share. After the death of their respective fathers, the 1/4th share of Muthusamy would devolve on the plaintiffs

1, 2 and defendants 3 and 4 each being entitled to a 1/16th share. 10. When the suit was at the stage of D.W.2 evidence, the aforesaid two interlocutory applications have been filed by defendants

2, 4 and 5.

11. It is their contention in the affidavit filed in support of these applications that during the evidence of D.W.2, the original Will dated 09.07.1974 could not be found. However, now after searching the house, a xerox copy of the Will has been found and in order to prove their case, the xerox copy of th