For Appellant : Mr.S.Nagarajan

For Respondents : Mr.S.Vigneshwaran, for Mr.S.Arivazhagan.

J U D G M E N T

The appellant/defendant is the brother of the respondents/plaintiffs. The Second Appeal is directed against the concurrent findings of the Courts below in the suit for partition filed by the two sisters against their sole brother.

2. For convenience parties are referred as found in the plaint. According to the plaint, the plaintiffs and the defendant are the children of Late Sundarathachi and Late Murugaiah Pillai. Their mother, Sundarathachi, died intestate in the year 1991, leaving behind 12 properties mentioned in the ‘A’ schedule of the plaint. Their father, Murugaiah Pillai, died intestate on 18.09.2009, leaving behind 26 properties in two villages, morefully described in the ‘B’ schedule of the plaint. The properties were in joint possession and enjoyment of the parties till the demise of the father. After the demise of the father, when the plaintiffs through notice dated 07.12.2009, sought for their shares of 1/3rd each as per the Hindu Law of Succession, the defendant refused. Hence, the suit for partition to divide the properties into three and allot 1/3rd share to each of the plaintiffs.

3. As per the written statement filed by the defendant, the relationship of the parties admitted. However, claim of share in the properties denied by the defendant based upon two Wills, one dated 02.10.1953 executed by the maternal grandmother, Subbammal and another dated 09.08.2005 executed by Murugaiah Pillai. The defendant claim exclusive rights over the properties left by the parents through these Will. Further it is pleaded incorrectness of the statements with regard to several items of property mentioned in the suit schedule which were either not owned by the parents or already sold during their lifetime. Hence, the incorrectness renders the suit bad. That apart, the plea of ouster and suppression of the knowledge about the Wills were other grounds taken as a ground for dismissal of the suit.

4. The Trial Court framed the following issues for consideration:

1. Whether the plaintiffs are entitled to 1/3rd share each in the ‘A’ and ‘B’ Schedule properties?

2. Whether the plaintiffs holds any valid Will in his favour?

3. What other reliefs the parties are entitled to?

5. On behalf of the plaintiffs, the first plaintiff, Tmt.Andal was examined as P.W.1. Ex.A1 to Ex.A8 were marked on the side of the plaintiffs. On behalf of the defendant, five witnesses were examined and Ex.B1 to Ex.B.18 were marked in support of his case.

6. After considering the oral and documentary evidence, the Trial Court held that some of the properties mentioned in the plaint already been sold by Murugaiah Pillai, the father of the parties and some of the properties were purchased in the names of the minor children of the defendant, for which the grandfather Murugaiah Pillai is only their guardian. Excluding those properties, the trial Court allowed the suit for partition by holding the plaintiffs are entitled for 1/3rd share each. Accordingly, preliminary decree was passed.

7. The judgment and decree dated 21.12.2011 passed in O.S.No.72 of 2010 came up for consideration before the Sub-Court, Mannarkudi in A.S.No.34 of 2012 filed by the defendant.

8. The First Appellate Court framed the following points for consideration:

(i) Whether the trial Court was justified in disbelieving the Will?

(ii) Whether the judgment of the trial Court warrants interference?

9. The First Appellate Court, after discussing the evidence held that the interpretation of Ex.B15 Will is correct and justified the trial Court’s decision in disbelieving the Will Ex.B17. Hence, held there is no need to interfere in the judgment and decree of the trial Court.

10. Challenging the concurrent findings of the Courts below, the defendant preferred the Second Appeal, which is now under consideration.

11. When the matter came up for admission, this Court thought it fit that the matter