Madras High Court
Bala Thiyagarajan vs L.S.Appasundaram
A.S.No.76 of 2011
THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on Delivered on
08~04~2022 06~06~2022
CORAM:
THE HONOURABLE MRS. JUSTICE S. KANNAMMAL
A.S.No.76 of 2011
and M.P.No.1 of 2011
Bala Thiyagarajan ... Appellant
Versus
1. L.S.Appasundaram
2. L.A.Rishikesan
3. L.A.Madavan
4. B.Suresh Kumar
5. S.Gowri
6. P.Dharani Devi
7. S.Mohanasundari
8. C.Baskaran
9. C.Mohanlal
10.C.Momraj Jain (Died)
11.C.Sohanlal Jain
12.C.Ramesh Kumar
13.J.Gowthamchand Jain
14.M.Babulal
(R10 died (C.Momraj Jain) viz., vide Court
order dated 03.12.2021 made in A.S.No.76 of 2011
(AANJ as per memo dated 15.11.2021 in
S.R.No.33325 – Recorded). ... Respondents
Appeal Suit is filed under Section 96 of the Civil Procedure Code against
the Judgment and Decree of the Court of the Additional District and Sessions
Judge, Fast Track Court-II, Ranipet in O.S.No.29/2005 dated 28.06.2010.
For Appellant : Mr.V.Raghavachari
https://www.mhc.tn.gov.in/judis
1/21
A.S.No.76 of 2011
For R1 to R3 & R5 : Mr.T.Karthikeyan
for Mr.A.M.Loganathan
For R4 : Mr.Christopher Vijayachandran
For R6 to R8 : Mr.Arthur Jayakumar
For R11 : Mr.S.Dhanasekar
For R9 & R12 to R14 : Notice Served
For R10 : Died (Steps due)
JUDGMENT
The 1st defendant in O.S.No.29 of 2005 on the file of the Additional District and Sessions Judge, Fast Track Court-II, Ranipet, is the appellant in this appeal.
2. The suit was filed by the sister of the appellant by name A.Balasaraswathi. The suit was filed as against 12 defendants for the relief of partition and separate possession of 1/5th share in A and B schedule property and for a direction, directing the 1st defendant/appellant herein to pay to the plaintiff 1/5th share of future mesne profit at the rate of Rs.6,000/- per month from the date of plaint till the date of partition and separate possession.
3. The plaintiff and the 1st defendant are children of late https://www.mhc.tn.gov.in/judis 2/21 A.S.No.76 of 2011 V.C.Balakrishna Mudaliar and Lakshmi Bai. Apart from the plaintiff and the 1st defendant, there are three other children born to V.C.Balakrishna Mudaliar and they are 2nd defendant, 3rd defendant and one Saroja. According to the plaintiff, Saroja died even on 28.08.1992. The husband of Saroja by name Chandrasekar also died on 15.10.1996 and therefore, the children born to Saroja and late Chandrasekar were arrayed as defendants 4, 5 and 6 in the plaint.
4. Before proceeding further, it is pertinent to mention that the suit was filed by the sole plaintiff on 13.02.2001. It appears that the suit was not numbered for over a period of two years and even before the suit could be numbered, the sole plaintiff Bala Saraswathi died on 02.10.2003. Therefore, her husband S. Appasundaram and two sons L.A. Rishikesan and L.A. Madhavan were brought on record as plaintiffs 2 to 3.
5. According to the deceased plaintiff, the suit property is the self- acquired property of her father V.C. Balakrishna Mudaliar over which she had got a share. The plaintiff's father V.C.Balakrishna Mudaliar died on 09.02.1996 leaving behind her mother and five children (including the pre-deceased daughter) and her siblings as legal heirs. Subsequently, on 24.10.1999 https://www.mhc.tn.gov.in/judis 3/21 A.S.No.76 of 2011 Lakshmi Bai, mother of the deceased sole plaintiff and defendants 1, 2 and 3, died on 24.10.1999. It is the definite case of the deceased sole plaintiff that her father V.C. Balakrishna Mudaliar died intestate and to her knowledge he has not executed any testament in favour of any one. Even according to the deceased sole plaintiff, the 1st defendant, being the eldest son has been assisting her father in his business as well as the management of the properties. Even after the death of her father, the 1st defendant was allowed to manage the business and maintain the properties left by her father. The rental income of Rs.30,000/- is being received by the 1st defendant. However, he has failed to apportion the rental income in favour of all the legal heirs. It is stated that the suit property continued to be in joint possession of the plaintiff and defendants. While so, the 1st and 2nd defendant sold a portion of the property in favour of defendants 7 to 12. However, such sale will not bind the plaintiff in any manner to file the present suit for partition. As the defendants 7 to 12 are purchasers of a portion of the property owned by her father, they were arrayed as parties to the suit for proper and effective adjudication. Further, the defendants 1 and 2 acted against the right and interest of the plaintiff in respect of the suit property, hence, she had sent a notice dated 07.02.2000 calling upon the defendants 1 and 2 to divide the suit properties by metes and bounds. A reply notice dated 13.02.2000 was sent by the 1st defendant claiming exclusive https://www.mhc.tn.gov.in/judis 4/21 A.S.No.76 of 2011 right in the suit property by virtue of a Will dated 06.02.1995 alleged to have been executed by her father. Therefore, a rejoinder dated 29.02.2000 was sent by the plaintiff specifically questioning the enforceability of the Will dated 06.02.1995. However, as there was no reply notice sent to the rejoinder 29.02.2000, the plaintiff filed the suit on 13.02.2001, as mentioned above.
6. The 3rd defendant who is the sister of the plaintiff has filed a written statement specifically claiming that some of the properties owned by her father V.C.Balakrishna Mudaliar were not included in the plaint schedule. It was also stated that Item No.5 in A schedule does not measure 72 cents but it was 140 cents. The 3rd defendant also referred to some of the omissions to include movable properties in the B schedule. At the same time, the 3rd defendant has denied that her father V.C. Balakrishna Mudaliar has executed any Will dated 06.02.1995 as claimed by the 1st defendant. Therefore, the 3rd defendant prayed for dismissal of the suit.
7. The 1st defendant, who is the contesting defendant, has filed a written statement specifically stating that he was assisting his father V.C.Balakrishna Mudaliar even during his life time in the business run by him besides managing the properties left by his father. It was also his contention https://www.mhc.tn.gov.in/judis 5/21 A.S.No.76 of 2011 that even during the life time of the sole plaintiff, she had called upon the defendants 1 and 2 for an amicable partition and at that time also it was informed to her about the execution of Will dated 06.02.1995 in their favour. However, the deceased sole plaintiff remained silent for the reasons best known to her. Even in the reply notice sent by the 1 st defendant it was specifically pleaded that a Will dated 06.02.1995 has been executed by V.C.Balakrishna Mudaliar in favour of his sons the defendants 1 and 2. Even though the plaintiff sent a rejoinder questioning the enforceability of the will dated 06.02.1995, she has not chosen to challenge the validity of the will while filing the suit. However, the suit was filed for a partition simplicitor. In any event, the plaintiff cannot feign ignorance about the Will dated 06.02.1995 executed by his father. While so, the plaintiff ought to have challenged the Will dated 06.02.1995. In the absence of putting the Will into challenge, a mere suit for partition is not maintainable. By reason of the will dated 06.02.1995, the defendants 1 and 2 became exclusive owners of the suit property and therefore, the suit property is not available for partition among the legal heirs of the deceased V.C.Balakrishna Mudaliar. Therefore, the 1st defendant prayed for dismissal of the suit.
8. The trial Court on the basis of the above pleadings, framed five https://www.mhc.tn.gov.in/judis 6/21 A.S.No.76 of 2011 issues and they are as follows:-
(a) Do the plaintiffs hold 1/5 share in the plaint-schedule properties through Balasaraswathi? That's the deceased plaintiff No (1)?
(b) Is the will (Exhibit-B4) which D1 & D2 plead in their defence genuine? Is it enforceable against the plaintiffs and D3 to D6 on fact and law?
(c) Are all the properties, including dealership in petroleum, are Balakrishnan's self acquisition?
(d) Do the plaintiffs merit a preliminary decree for partition of the properties?
(e) What's this Court's decree on the suit? What are its terms?
9. The trial Court upon consideration of the deposition of 1 st defendant/D.W.1 attesting witness to the Will, D.W.2 and husband of the 3rd defendant D.W.3, refused to accept the plea of the 1st defendant as to the enforceability of the will. The trial Court has concluded that in the pleadings as well as in the evidence the husband of the plaintiff as well as her sister 3rd defendant has specifically denied the genuineness of Ex.B1. It was specifically https://www.mhc.tn.gov.in/judis 7/21 A.S.No.76 of 2011 pleaded by the 3rd defendant that “the will alleged to have been executed by V.C.Balakrishna Mudaliar” thus, when the defendants has specifically casted a doubt about the genuineness of the will, it is unenforceable law. Further, while reproducing the testimony of 1st defendant, the trial Court noticed that the deceased V.C. Balakrishna Mudaliar has also executed another will in favour of the 2nd defendant. However, the Will in favour of 2 nd defendant has not been mentioned by him in the Will executed in favour of the 1 st defendant. By taking note of the above, the trial Court has concluded that the Will said to have been executed in favour of the defendants 1 and 2 will not be a bar for the plaintiff to file the suit for partition. Accordingly, the trial Court passed a preliminary decree in favour of the plaintiffs.
10. Assailing the preliminary decree passed by the trial Court the learned counsel for the appellant vehemently contend that the 1st defendant has examined himself as D.W.1 and reiterated as regards the genuineness of the Will. Even, the plaintiffs have examined P.W.2-Nirmala, who is one of the staff working in the office of the Sub-Registrar. P.W.2 categorically stated that the deceased V.C. Balakrishna Mudaliar has subscribed his signature as well as left thump impression in the Will dated 06.02.1995 which was also marked as Ex.B1. On behalf of the defendants 1 and 2, D.W.2-Gopal was examined as a https://www.mhc.tn.gov.in/judis 8/21 A.S.No.76 of 2011 witness. D.W.2 is the 2nd attesting witness to the Will dated 06.02.1995. In fact, the defendants, according to the learned counsel, need not take steps to prove the genuineness and validity of the will especially when there is no mystery shrouds the circumstances surrounding the execution of the will by the testator. However, in order to effectively defend the suit filed by the plaintiffs it was the defendants 1 and 2 who have taken steps to prove the genuineness of the will. The trial Court, unfortunately, on the basis of surmises has concluded that the Will executed by the testator in favour of the 2nd defendant has not been mentioned in the Will dated 06.02.1995 and by treating it as an adverse circumstances, passed a preliminary decree for partition. The fact remains that the plaintiffs have knowledge about the execution of the will soon after the death of V.C. Balakrishna Mudaliar. However, for the reasons best known, after five years of the death of V.C. Balakrishna Mudaliar, the suit was filed during 2001. Even the plaint was not numbered for about two years until the death of the sole plaintiff. While so, the trial Court miserably failed to appreciate the defence raised by the 1st defendant in proper perspective and passed a preliminary decree of partition. It is further contended that a suit for partition cannot be decreed on mere surmises and in the absence of any existing legal rights on the part of the deceased, a preliminary decree can be passed. The trial Court also did not consider that on 20.11.1996, the https://www.mhc.tn.gov.in/judis 9/21 A.S.No.76 of 2011 defendants 1 and 2 have executed a sale deed under Ex.A5 on the strength of the Will dated 06.02.1995. Thus, the will dated 06.02.1995 has been acted upon. While so, the present suit for partition has been filed by the plaintiff only to harass the defendants 1 and 2. Above all in the plaint filed by the plaintiff, much after the receipt of the reply notice dated 13.02.2000, it was stated that the deceased V.C. Balakrishna Mudaliar died intestate. When such being the pleading made in the plaint, the Will dated 06.02.1995 executed by V.C.Balakrishna Mudaliar acts as an estoppal for the plaintiff to maintain the suit for partition. The learned counsel for the appellant/defendant therefore prayed for allowing the present appeal by setting aside the decree and judgment passed by the trial Court.
11. The learned counsel for the appellant placed reliance on the decision of the Hon'ble Supreme Court reported in 2020 16 SCC 209 in Dhanpat Vs. Sheo Ram, to contend that it is sufficient for the appellant to prove the legality and validity of the Will by examining any one of the attesting witnesses. In the present case, the appellant had examined D.W.2-Gopal who is one of the attesting witnesses and thereby satisfied the parameters laid down under Section 67 and 68 of the Evidence Act.
12. The learned counsel for the appellant also relied upon the decision https://www.mhc.tn.gov.in/judis 10/21 A.S.No.76 of 2011 of the Hon'ble Supreme Court reported in 2005 8 SCC 67 in Pentakota Sathyanarayana & Others Vs. Pentakota Seetharatnam & Others, and contended that there is no suspicious circumstances surrounding the Will dated 06.02.1995 executed by V.C.Balakrishna Mudaliar. By marking the Will dated 06.02.1995 and by examining D.W.2, one of the attesting witness as well as Nirmala, one of the staff of the office of the Sub-Registrar as PW2, the 1 st defendant/appellant has proved the initial onus on his shoulder. Therefore, the burden to disprove the existence or validity of the Will is on the part of the plaintiffs which they miserably failed to discharge. While so, the decree and judgment passed by the trial Court cannot be sustained.
13. On the above contentions, this Court heard the learned counsel for the plaintiff/respondents 1 to 3 in this appeal. It is the plea of the respondents 1 to 3/plaintiffs that the 2nd plaintiff L.S. Appasundaram married the plaintiff in the year 1965 and soon thereafter, he was assisting the deceased V.C.Balakrishna Mudaliar (his father-in-law) in his business activities. According to the learned counsel, the 2nd plaintiff has filed proof affidavit before the trial Court stating that her wife/deceased sole plaintiff came to known about the Will dated 06.02.1995 only after receipt of reply notice dated 13.02.2000. It is his statement in the chief examination that the Will dated https://www.mhc.tn.gov.in/judis 11/21 A.S.No.76 of 2011 06.02.1995 has not come into existence into normal circumstances. Therefore, he would state that the plaintiffs are entitled for partition and separate possession of the suit property dehors the Will dated 06.02.1995. Further more, the trial Court has rightly pointed out that in the Will dated 06.02.1995 the deceased V.C.Balakrishna Mudaliar has not disclosed about the Will executed in favour of his other son, the 2nd defendant. This was rightly taken note of by the trial Court as an adverse circumstances surrounding the enforceability of the Will dated 06.02.1995. The trial Court also pointed out the deposition of D.W.2-Gopal who has stated that he never knew as to in whose presence he has signed Ex.B4-Will. He also stated that he do not know whether the testator V.C.Balakrishna Mudaliar has signed the will or not. Therefore, this would clearly shows that one of the attesting witnesses of the Will dated 06.02.1995 has feigned ignorance about the signature subscribed by the testator in the will dated 06.02.1995. By taking note of the above, the trial Court has rightly granted a preliminary decree for partition and it does not call for any interference by this Court. Accordingly, the learned counsel for the contesting respondents prayed for dismissal of the appeal.
14. On the above contention, this Court has heard the submissions advanced by learned counsel appearing for the respondents 6 to 8 as well as https://www.mhc.tn.gov.in/judis 12/21 A.S.No.76 of 2011 the counsel for the 4th respondent.
15. The points arise for determination in this appeal is:
1. Whether the trial Court is right in passing a preliminary decree for partition in the suit filed by the plaintiffs/respondents 1 to 3?.
2. Whether the Will dated 06.02.1995, Ex.B4 said to have been executed in favour of the 1st defendant/appellant is a bar for the plaintiffs to maintain the suit for partition?
16. The relationship between the parties is not in dispute. The plaintiff is one of the daughters of the deceased V.C. Balakrishna Mudaliar. The 3 rd defendant is the other daughter of V.C. Balakrishna Mudaliar. Another daughter by name Saroja, pre-deceased her father V.C.Balakrishna Mudaliar. The 1st and 2nd defendants are the sons of V.C.Balakrishna Mudaliar. The wife of V.C.Balakrishna Mudaliar namely Laxmi Bai died on 24.09.1999. The plaintiffs 2, 3 and 4/respondents 1 to 3 herein are the legal heirs of the deceased sole plaintiff Balasaraswathi. The defendants 4, 5 and 6 are the children of Saroja, pre-deceased daughter of V.C.Balakrishna Mudaliar. The defendants 7 to 12 in the suit are the purchasers of the portion of the suit https://www.mhc.tn.gov.in/judis 13/21 A.S.No.76 of 2011 property from the defendants 1 and 2.
17. The deceased sole plaintiff laid the suit for partition. It is her vehement plea that her father V.C.Balakrishna Mudaliar died intestate and to her knowledge he has not executed any testament in favour of any one, much less the defendants 1 and 2. This is the sum and substance of the plaint averments. On the strength of this averment, the deceased sought for partition and separate possession of the suit property besides mesne profit.
18. The suit was contested by the appellant/1st defendant primarily on the ground that the plaintiff was fully aware of the Will dated 06.02.1995 executed in his favour. However, feigning ignorance or by suppressing the existence of the Will, the suit was filed. The Will dated 06.02.1995 was registered before the competent Sub-Registrar and it was also attested by D.W.2-Gopal. Even before the institution of the suit the plaintiff was fully aware of the existence of the Will dated 06.02.1995 in favour of the 1 st defendant upon receipt of reply notice dated 13.02.2000. However, for the reasons best known the plaintiff has filed a suit simplicitor for partition. The failure on the part of the plaintiff to challenge the Will dated 06.02.1995 is fatal to the plea of partition made by the plaintiff.
https://www.mhc.tn.gov.in/judis 14/21 A.S.No.76 of 2011
19. On perusal of the impugned judgment passed by the trial Court, this Court is of the view that the trial Court has erroneously shifted the burden on the shoulders of the 1st defendant to prove the genuineness of the will. Even though, as rightly pointed out by the learned counsel for the appellant, the contesting defendants need not prove the genuineness of the will, yet, they have marked the Will dated 06.02.1995 as Ex.B4. D.W.2 was examined as one of the attesting witnesses of the Will. The plaintiff did not challenge the Will and therefore it can be construed that there is no suspicious circumstances surrounding the enforceability of the Will dated 06.02.1995. However, the trial Court erroneously, upon going through the recitals of the Will dated 06.02.1995, has concluded that the testator did not mention the Will executed in favour of his other son and therefore there is suspicion surrounding the execution of the Will. This conclusion arrived by the trial Court is erroneous besides it is legally not sustainable. The suit was not filed for a declaration to declare that the Will dated 06.02.1995 is genuine and legally enforceable. On the other hand, the suit was filed by the plaintiff for partition simplicitor. In such a suit, the onus is on the part of the plaintiff to prove that the suit property is indivisible and it is available for partition among all the eligible heirs. However, a defence was raised in the suit about the existence of the Will dated https://www.mhc.tn.gov.in/judis 15/21 A.S.No.76 of 2011 06.02.1995 in favour of the first defendant. While so, the plaintiffs ought to have amended the pleadings in the plaint, but it was not done.
20. On behalf of the plaintiffs, S. Appasundaram husband of the deceased sole plaintiff was examined as P.W.1. P.W.1/2nd plaintiff has affirmed that the signature in Ex.B4, Will is that of his father-in-law V.C.Balakrishna Mudaliar. He has also affirmed that Gopal Mudaliar/D.W.2 has signed as one of the attesting witness. His deposition is to the following effect:-
“vd;dplk; fhz;gpf;fg;gLk; Mtzj;jpy;
cs;sJ nfrt Kjypahh;. nfhghy; Kjypahh;
ifbahg;gk; jhd; mit vf;!;gp/1 vd;
khkdhh; ghyfpUt&;zd; Rnut&;f;Fk; capy;
vHjp itj;Js;shh; vd;W brhd;dhy;
rhpjhd;/ me;j capYk; nfrt Kjypahh;.
ghf;fpa kfd; nfhghy; Kjypahh; rhl;rp
ifbahg;gk; bra;Js;shh;fs; vd;why;
rhpjhd;/ jw;nghJ rhl;rp khw;wp xU capy;
efy;jhd; mDg;gpdhh; vd;W TWfpd;whh;/
vd; gpuhJ kw;Wk; gpukhz thf;FKPyj;jpy;
vdf;F xU capy; efy;jhd; mDg;gg;gl;lJ
vd;W brhy;ytpy;iy/”
“gf;fk; 3y; cs;s ifbaHj;jpYk; tist[
https://www.mhc.tn.gov.in/judis
16/21
A.S.No.76 of 2011
,y;iy/ 4tJ gf;fj;jpy; cs;s
tp/rp/ghyfpUt&;zd; ifbaHj;jpy; tist[
cs;sJ/ gf;fk; 5y; tist[ ,y;iy/
rhh;gjpthsh; mYtyfj;jpy; Kjy; gf;fj;jpy;
gj;jpuj;jpd; gpd;g[wk; tp/rp/ghyfpUt&;zd;
ifbaHj;jpy; tist[ ,y;iy/ Mdhy;
ifbaHj;jpy; khw;wk; ,y;iy/
tp/rp/ghyfpUt&;zd; ifbaHj;jpy; cs;s
nfhl;oid nrh;j;J jhd; ifbaHj;J
nghLthh;/ tp/rp/ghyfpUt&;zd;
ifbaHj;Jf;fs; cld; nfhL nrh;e;J jhd;
th/rh/19 Mtzj;jpy; cs;sJ/ th/rh/19
tp/rp/ghyfpUt&;zd; ifbaHj;J kw;Wk;
nfhl;Lf;F v/rh/1 capy; Mtzj;jpYs;s
tp/rp/ghyfpUt&;zd; ifbaHj;Jf;fspYk;
ifbaHj;J fPH; cs;s nfhLfspYk;
khw;w';fs; cs;sd/ ePjpkd;wj;jpy; mDkjp
bgw;W capy; v/rh/1 Mtzj;ij ehd;
ghh;ff
; tpy;iy/ th/rh/19 Mtzj;ij
vHJk;nghJ tp/rp/ghyfpUt&;zd; taJ 85
,Uf;Fk;/ capy; vHjpag;gpwF 89 taJld;
mth; capUld; ,Ue;jhh;/
tp/rp/ghyfpUt&;zd; Kjypahh; ,we;jgpwF
ePjpkd;wj;jpy; capiy ghh;j;J jhd; v/rh/5
capy; Fwpj;Jbjhpa[k;. capYf;Fk;.
gj;jpuj;Jf;Fk; Kd;ng. tp/rp/ghyfpUt&;zd;
Kjypahh; mth; kfd;fSf;F
brhj;Jf;fisa[k;. tpahghuj;jpid
https://www.mhc.tn.gov.in/judis
17/21
A.S.No.76 of 2011
kfd;fSf;F gphpj;Jf; bfhLj;Jtpl;lhuh
vd;W vdf;Fj; bjhpahJ/ kPzL
; k; rhl;rp
brhy;fpd;whh; tpahghuj;ij gphpj;Jf;
bfhLj;jhh;/”
21. This testimony of P.W.1 itself is sufficient to show the Will dated 06.02.1995 is genuine and it was also registered before the competent registering authorities. The testimony of P.W.1 makes it abundantly clear that it was the testator V.C. Balakrishna Mudaliar who has signed the Will and it was duly attested by P.W.2-Gopal Mudaliar. Above all, on behalf of the defendants, Nirmala, one of the staff of the office of the Sub-Registrar was examined through whom Ex.D1 was marked. Nirmala in her deposition has categorically stated that V.C. Balakrishna Mudaliar had subscribed his left hand thumb impression in the Will dated 06.02.1995. Therefore, on the basis of the above evidence, it is abundantly clear that V.C.Balakrishna Mudaliar has executed the Will dated 06.02.1995 in favour of the 1st defendant. Even the plaintiff was fully aware of the existence of the Will dated 06.02.1995. Even assuming that the Will is not a genuine document, it is for the plaintiff to subject the Will dated 06.02.1995 to challenge, by seeking the relief of declaration to declare that the Will dated 06.02.1995 is sham and nominal or invalid and will not bind her in any manner. In the absence of such challenge made by the plaintiff https://www.mhc.tn.gov.in/judis 18/21 A.S.No.76 of 2011 this Court is of the considered view that the plaintiffs are not entitle to maintain the suit for partition. Above all, it was categorically admitted by P.W.2 that the defendants 1 and 2 are assisting his father V.C.Balakrishna Mudaliar in his business and they are maintaining the properties of the deceased V.C.Balakrishna Mudaliar. He also admitted that the testator executed the Will and bequeathed the suit property in favour of the 1st defendant. While so, this Court is of the considered view that there is no suspicious circumstances projected by the plaintiffs to nullify the Will dated 06.02.1995. Further, this Court finds that Section 67 and 68 of the Evidence Act has been fully complied with by the 1st defendant. As per 67, if a document is signed by any person, the signature of the said person must be proved. In this case P.W.1, husband of the sole plaintiff himself admitted about the signature of the deceased V.C.Balakrishna Mudaliar in the Will dated 06.02.1995. Further, by examining P.W.2–Gopal, one of the attesting witnesses, Section 68 of the Evidence Act has been fully complied with. In the above circumstances, the trial Court has committed a manifest error in granting a preliminary decree for partition. Therefore, the judgment and decree passed by the trial Court is legally not sustainable and it is required to be interfered by this Court.
22. In the result, the Appeal Suit stands allowed by setting aside the https://www.mhc.tn.gov.in/judis 19/21 A.S.No.76 of 2011 decree and judgment dated 28.06.2010 passed in O.S.No.29/2005 on the file of the Additional District and Sessions Judge, Fast Track Court-II, Ranipet. Consequently, the suit in O.S. No. 29 of 2005 is dismissed. No costs.
06.06.2022
gbi
Index :Yes/No
Internet :Yes/No
To
The Additional District and Sessions Judge,
Fast Track Court-II,
Ranipet.
https://www.mhc.tn.gov.in/judis
20/21
A.S.No.76 of 2011
S.KANNAMMAL. J,
gbi
Pre delivery judgment made in
A.S.No.76 of 2011
06.06.2022
https://www.mhc.tn.gov.in/judis
21/21