Will validly proved by attesting witness; plaintiff failed to establish joint family property for partition entitlement.

JUDGMENT :

K. KUMARESH BABU, J.

The present Appeal Suit has been filed seeking to set aside the judgment and decree dated 29.04.2017 made in O.S.No.161 of 2024 on the file of the Additional District Court-I, Erode.

2. The case of the Plaintiff is that she is the daughter of the 1st defendant and older sister of the 2nd defendant. The plaintiff along with the 1st and 2nd defendants are the Hindu Joint Family members and the suit schedule properties are the joint family properties, which were jointly enjoyed by the Plaintiff and the defendants. When plaintiff demanded her share in the suit schedule properties orally, defendants delayed to give her share and hence the plaintiff had instituted the suit for partition in the O.S. No. 161 of 2024. In the said suit, the Plaintiff sought for the partition of Suit schedule Properties into 9 equal shares and allotment of 4 such shares to herself.

3. On the other had during the pendency of the above suit the 1st defendant died on 04.10.2011 and his wife was thereafter impleaded as the 3rd defendant. The 2nd defendant in his written had averred the 1st defendant during his lifetime had sent a reply notice to the plaintiff stating that the suit property in the land in the Resurvey No.375/4 measuring about 0.38.0 hectare originally belonged to the 1st defendant’s mother Mrs.Periyamarayal. It was contended that the said property was the separate property of Mrs. Periyamarayal, who had died about 15 years prior, leaving behind the 1st defendant as her sole legal heir, and therefore the plaintiff had no share whatsoever in the said property. The 2nd defendant further avers that he had married the daughter of the Plaintiff, taking care of the marriage expenses and had also helped the palintiff’s younger daughter with her education expenses. It was further asserted that the Plaintiff had claimed before the defendants to have a share in the suit schedule properties and had expressed her willingness to execute a release deed in favour of the defendants upon payment of money, which was not agreed by the defendants.

4. But subsequently pursuant to the family arrangement arrived at before the Panchayatdars, the 2nd defendant had paid a sum of Rs.50,000/- in cash to the plaintiff, upon which the plaintiff had agreed not to demand partition in the suit schedule property, thereby relinquishing her rights in the share of the family properties, however, the said arrangement was not reduced into writing. It was further contended that the 1st defendant, during his lifetime, while he was in a sound disposing state of mind and of his own volition had executed a Will dated 02.07.2011 in favour of the 2nd and 3rd defendants. By virtue of the said Will, the 1st defendant bequeathed the lands comprised in R.S. Nos.375/4, 407/1, 415/2 and 439/4 in favour of the 2nd defendant after his lifetime.

5. The 1st defendant also created a life interest in respect of the land comprised in R.S. No.412/9E, measuring 40 cents and 1,500 sq.ft of house sites, in favour of his wife, the 3rd defendant herein and after whose lifetime the same property shall devolve upon the 2nd defendant. It was further stated that the 1st defendant during his lifetime had also alienated 27½ cents of land in R.S. No.440/2. Subsequent to the death of the 1st defendant on 04.10.2011, the 2nd and 3rd defendants have been in enjoyment of the properties, as per the Will dated 02.07.2011. Whereas the plaintiff is not in the joint possess