IMPORTANT POINT
Proof of execution of Will – Mere registration of Will would not attach to it stamp of validity and it must still be proved in terms of legal mandates under provisions of Section 63 of Succession Act and Section 68 of Evidence Act.

JUDGMENT :

(C.T. Ravikumar, J.)

1. The unsuccessful defendant Nos.1 to 3 in OS No.142/1992 which is a suit for partition and allotment of 5/7th share filed by respondent Nos.1 to 5 herein, filed this appeal against the judgment dated 15.11.2019 passed by the High Court of Madras, Madurai Bench in AS No.368/2002 whereby and whereunder the appeal was dismissed and the judgment and decree in O.S. No. 142 of 1992 dated 27.09.2001 on the file of the Additional Sub-Court, Tenkasi was confirmed. Essentially, the Trial Court and the High Court have concurrently declined to accept the case of the appellants based on the Will dated 06.04.1990. Hereafter in this appeal, for the sake of convenience, the parties are referred to, in accordance with their rank and status in the Original Suit, unless otherwise specifically mentioned.

2. The plaint averments, in brief is as follows: -

The suit schedule properties originally belonged to one Balasubramaniya Thanthiriyar. He married twice. Through his first wife, Rajammal (plaintiff No.4/respondent No.4), he got three sons, namely, Muruganandam (plaintiff No.1/respondent No.1), Ganesh Murthy (plaintiff No.2/respondent No.2) and Kannan (plaintiff No.3/respondent No.3) and one daughter by name Mahalakshmi (plaintiff No.5/respondent No.5). While the marriage with the first wife Rajammal was subsisting, Balasubramaniya married Leela (petitioner No.1/defendant No.1) and as such, she is an illegitimate wife. Sivakumar (petitioner No.2/defendant No.2) and Lt. Mageshwaran (petitioner No.2/defendant No.3) are the illegitimate sons of Balasubramaniya through Leela.

3. Earlier, Balasubramaniya Thanthiriyar instituted O.S. No.504/ 1986 against his first wife and children through her viz., plaintiff Nos.4, 1 to 3 and 5 respectively. Later, it was compromised at the instance of the elderly villagers and partition of properties effected between them as per partition deed dated 04.12.1989. As per the partition deed, his properties were divided into four schedules. Properties described and contained in the first-schedule were allotted to himself by Balasubramaniya Thanthiriyar. The second-schedule properties consisting of 22 items were allotted to the share of plaintiffs/respondent Nos.1 to 3 herein viz., his sons through his first wife and the third-schedule properties were allotted to his first wife viz. plaintiff/respondent No.4. The fourth-schedule properties were allotted in the name of his minor daughter viz., plaintiff/respondent No.5. Balasubramaniya died on 28.11.1991.

4. In fact, the lis in the present suit viz., O.S. No.142/1992 is with respect to the several properties left to the share of Balasubramaniya Thanthiriyar as per the aforesaid partition deed and described as suit schedule properties. According to the plaintiffs, defendant No. 1 is not entitled to any share in the property of deceased Balasubramaniya Thanthiriyar being an illegitimate wife, in the sense that they married when the first wife was alive and that marriage was subsisting. It is the contention of the plaintiffs that they each have 1/7 share and thus, totalling 5/7 share in the properties of Balasubramaniya Thanthiriyar and respondent Nos.2 and 3 too got 1/7 share each only in such properties. The first item of the schedule properties is shops buildings occupied by defendants 4 to 12, the tenants. Conspiring with them the defendant Nos.1 to 3 attempted to get the entire amount of rent from the defendant Nos.4 to 12 and to withdraw the bank deposit. Upon such developments the plaintiffs issued notices to defendant Nos.4 to 12 and then, filed H.R. C.O.P. No. 2 to 10 of the year 1992 in the Court of Tenkasi Rent Controller and deposited the rent amount. As relates to plucking of coconuts from the groves mentioned as items 18 to 21 the defendant Nos.1 to 3 created problems and were trying to appropriate the harvest with the help of the police. In short, the defendant Nos.1 to 3 are trying to create prejudice to their shares and also to cre