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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 18.04.2023

CORAM:

THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR

A.S(MD)NO.256 OF 2022

and

C.M.P(MD)Nos.11987 of 2022 and 3656 of 2023

1.Saminathan

2.Nagalakshmi

3.Kanagarethinam

4.Dharmasamvarthini

:Appellants/Plaintiffs

.vs.

Pattammal(died)

Marimuthu(died)

1.Gopal Amma

Mathi Rajan(died)

2.The Sub-Registrar,

Sub Registrar Office,

Manambuchavadi,

Thanjavur.

3.The Tahsildar,

Tahsildar Office,

Papanasam Taluk,

Thanajvur District.

4.Mohana

5.Kavya

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6.Rajagopal Raja

7.Subha

:Respondents/Defendants

PRAYER: First Appeal filed under Section 96 of the Civil Procedure

Code against the judgment and decree made in O.S.No.27 of 2012,

dated 22.08.2022, on the file of the I Additional District

Judge(PCR), Thanjavur.

For Appellant :Mr.S.Venkatesan

For Appellant-1 :Exparte

For Respondents :Mr.D.Sasikumar

2 and 3 Addl.Government Pleader

For Respondents :Mr.K.R.Manimaran

4 to 6

For Respondent-7 :Mr.K.K.Senthil

JUDGMENT

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The unsuccessful plaintiffs in a suit for partition are the

appellants.

2.The parties are referred to as per their ranking before the

Court below.

3.The brief facts leading to the filing of the appeal is as

follows:

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It is the case of the plaintiff that the suit properties originally

belonged to one Venkatachala Nandiyar and his two brothers.The

suit properties are allotted to Venkatachala Nandiyar in the

partition between them. The said Venkatachala Nandiyar had

executed a registered Will on 29.7.1995 bequeathing the suit

properties to his two brothers Rajagopal Nandiyar and Rajappa

Nandiyar. The wife of the said Venkatachala Nandiyar namely,

Samiyammal died on 30.5.1999. Schedule 'A' and 'B' in the Will,

dated 29.7.1995 bequeathed equally between his two brothers as

above mentioned. Item Nos.15 to 23 of the suit properties belongs

to the said Venkatachala Nandiyar. The plaintiffs are the legal heirs

of Rajappa Nandiyar and the defendants are the legal heirs of the

Rajagopal Nandiyar. Rajappa Nandiyar exeucted a Will in favour

of the first plaintiff on 3.12.2007 bequeathing his half share to

him .

4.It is the contention of the defendants 1 and 2 that the Will

executed by Venkatachala Nandiyar dated 29.7.1995 has not come

into force, since the said Venkatachala Nandiyar executed a

subsequent Will in favour of his wife Samiyammal on 30.12.1997.

As per the said Will, the entire properties bequeathed in favour of

the said Samiyammaland the said Samiyammal died on 9.10.2010.

The said Samiyammal executed a Will in favour of the first

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defendant and daughter-in-law Mohana on 11.5.2010. The Will,

dated 27.09.1995 has not come into force and no property was

allotted to his wife Samiyammal. Therefore subsequently a Will

was executed by Venkatachala Nandiyar validly. The property has

not been mutated in the name of the first plaintiff and the Will

executed by Rajappa Nandiyar is also denied. The entire

properties of the Venkatachala Nandiyar as per Will dated

30.12.1997 came to Samiyammal and subsequently came to

Pattammal and Mohana as per Will, dated 11.7.05. Hence opposed

the suit.

5.On the basis of the above pleadings, the trial Court has

framed the following issues:

1.Whether the Will, dated 29.7.1995 alleged to have been

executed by Venkatachala Nandiyar is true, valid and came into

force?

2.Whether the Venkatachala Nandiyar had cancelled the

Will, dated 29.7.1995 and executed another Will, dated 30.12.1997

in favour of his wife Samiyammal?

3.Whether Samiyammal executed a Will, dated 11.5.2010 in

favour of the first defendant and Mohana?

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4.Whether Rajappa Na