Admitted registered Will's execution is axiomatic; no Section 68 proof needed if not fact in issue.

JUDGMENT

G.R.Swaminathan J.

The defendant in O.S No.81 of 2014 on the file of the learned Principal District Judge, Tirunelveli is the appellant herein. Though the legal heirs of the plaintiff have been served and their names are also printed in the cause list, they have not chosen to enter appearance either in person or through counsel. The suit was one for partition.

2.The case of the plaintiff was as follows :

The plaintiff and the defendant are siblings. The suit property is a movable property (a bus along with a permit). It admittedly belonged to Lakshmi Ammal, the mother of the parties. On 24.10.1997, Lakshmi Ammal executed a registered Will bequeathing the suit property in favour of the plaintiff and the defendant. Lakshmi Ammal passed away on 12.11.2004 and thereafter, the Will came into force. The plaintiff and the defendant are in joint possession and enjoyment of the property. The plaintiff sought his half share in the suit property. Since the defendant did not come forward for partitioning the same, O.S No.81 of 2014 came to be instituted.

3.The defendant contested the suit principally on the ground that as admitted by the plaintiff himself, there was a partition between the parties on 16.11.2011 in respect of the family estate. While according to the plaintiff, the suit property was not the subject matter of the said partition, according to the defendant / appellant herein, the suit property was also the subject matter of the partition and that the plaintiff had given up his half share in the suit property upon receipt of consideration to the tune of Rs.30,00,000/- (Rupees Thirty Lakhs only) along with the interest of Rs.90,000/- (Rupees Ninety Thousand only).

4. Based on the rival pleadings, the Court below framed the following three issues :

i) Whether the defendant paid the plaintiff’s share amount of Rs.30,00,000/- in the suit property and interest of Rs.90,000/- for the delayed payment?

ii) Whether the plaintiff is entitled to file partition suit?

iii) Whether the plaintiff is entitled to the relief of partition of ½ share in the suit property?

iv) To what relief the plaintiffs are entitled to?

5.In support of his case, the plaintiff examined himself as PW.1 and Exs.A1 to A3 were marked. The defendant examined himself as DW.1 and marked Ex.D1 (photocopy of the renewal of the permit). After considering the evidence on record, the Court below vide judgment and decree dated 29.06.2016, granted preliminary decree for partition of the plaintiff’s half share in the suit property. Aggrieved by the said preliminary judgment and decree, this appeal has been filed.

6.The learned counsel appearing for the defendant / appellant pointed out that apart from the parties herein, Lakshmi Ammal was blessed with four other daughters. But for the Will (Ex.A1) dated 24.10.1987, the suit property would devolve in equal measure on all the six children. Only on account of the Will, the plaintiff is in a position to claim half share in the suit property. However, the Will was not proved by examining even a single attesting witness. If, according to the plaintiff, the attesting witness had passed away, recourse ought to have been taken under Section 69 of the Indian Evidence Act, 1872. In support of this contention, the learned counsel for the appellant relied on the following decisions:

a) (2022) 1 SCC 115 (V.Prabhakara Vs Basavaraj.K &

Another), b) (2017) 1 SCC 257 (Ramesh Verma Vs Lajesh Saxena & Another)

c) 2025 (5) CTC 738 (Ramesh Chand Vs Suresh Chand & Another)

d) 2022 (3) CTC 88 ( Malliga Vs P.Kumaran )

The learned counsel for the appellant submitted that a bare look at the aforesaid decisions would show that even if the defendant had not contested or even admitted the execution of the Will, still the propounder of the W