COMMON JUDGMENT

These second appeals arise out of the common judgment rendered in O.S.No.646 of 1996 and O.S.No.1273 of 1994 instituted by the first respondent Thiru.M.Natarajan. The plaintiff Natarajan and the appellant Kamala are brother and sister. They were born to Manickam and Thailammai Ammal. Manickam's father Vairavan had an elder brother by name Karuppanna Muthiriar. The property that is the subject matter of O.S.No.646 of 1996 belonged to Karuppanna Muthiriar.

2.The case of Natarajan is that the said Karuppannan had executed a registered Will dated 21.07.1955 conferring life estate on his nephew Manickam and his wife Thailammai Ammal and absolute interest in his favour. There is no dispute that Manickam/father of the parties herein had dealt with the suit property on more than one occasion by mortgaging the same. Manickam passed away on 10.09.1994. According to Natarajan, he is also entitled to 50% share in the terminal benefits of Manickam. He therefore filed two suits namely O.S.No.646 of 1996 seeking the relief of declaration and recovery of possession in respect of the suit property and O.S.No.1273 of 1994 seeking 50% share in the terminal benefits of the father. The appellant Kamala filed written statement resisting the suit claims. Her stand was that the Will dated 21.07.1955 (Ex.A1) was cancelled by Karuppanna Muthiriar himself on 05.12.1956 (Ex.B1). She also stated that her father Manickam had executed a Will dated 30.05.1994 bequeathing his entire life estate in favour of the appellant. Based on the divergent pleadings, the trial Judge framed the following issues in O.S.No.646 of 1996:-

1.Whether the plaintiff is entitled to a decree for declaration?

2. Whether the Will dated 09.10.1955 has been cancelled by the Will dated 05.012.1956?

3. Whether the first defendant is entitled to the suit property by virtue of the Will dated 30.05.1994?.

4. Whether the plaintiff is entitled to mesne profits?

5. To what relief, the plaintiff entitled?

In O.S.No.1273 of 1994, the following issues have been framed:-

1.Whether the plaintiff is entitled to a share over the suit property ?

2. Whether the first defendant is entitled to full rights as per Will?

3. Whether the plaintiff is entitled to partition?

4.To what other relief is the plaintiff entitled?

3.The plaintiff examined himself as P.W.1 and marked Ex.A1 to Ex.A3. The appellant Kamala examined herself as D.W.1 and two other witnesses on her side. Ex.B1 to Ex.B12 were marked. After consideration of the evidence on record, by judgment and decree dated 20.11.2003, both the suits were dismissed. Aggrieved by the same, the plaintiff Natarajan filed A.S.No.59 of 2004 and A.S.No.357 of 2005 before the Principal District Judge, Tiruchirappalli. By judgment and decree dated 30.12.2005, the decision of the trial Court was reversed. A.S.No.357 of 2005 was allowed in toto, while A.S.No.59 of 2004 was partly allowed granting 50% share in favour of the plaintiff in respect of his father's terminal benefits.

Aggrieved by the same, these second appeals have been filed.

4.SA(MD)No.1012 of 2008 was admitted on 29.09.2008 on the following substantial question of law :

“Whether the lower appellate court has rightly held that though the appellant has proved the Ex.B12 Will by one attesting witness, the appellant is entitled to only half share of the retirement benefits?”.

SA(MD)No.1038 of 2008 was admitted on 21.10.2008 on the following substantial questions of law :

“1.Whether the conclusion of the lower appellate Court that the Will of the year 1955 has not been cancelled by the Will dated 05.12.1956, since Ex.B1 was not a genuine one merely because it was registered and executed through witnesses is correct?

2.Whether the lower appellate Court rightly held that when the execution of Ex.A1 was admitted by the plaintiff in plaint as on 09.10.1955 and the findings of the execution of A1 is contrary to the plaint is correct or not?

3.Whether the findings of the lower appellate Court that Ex.B2 is partly vali