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3. The plaint averments in TOS 36/87 are as follows: The father of the plaintiff by name Madurai Muthu Mudaliar was ordinarily residing at No.29 (Now 14) Subramania Mudali Street, Madras 7, and he died on 10.7.91. At the time of his death, he left behind him the following legal heirs viz. 1) Karpagam Ammal (wife); 2) P.M. Selvasigamani (son); 3) P.M.Mani (son); 4) P.M.Kamalanathan (son); 5) Puspaveni (daughter); 6) Mangalaveniammal (daughter); 7) Hamsaveni ( daughter) and 8) Pankajammal (daughter). Apart from the above legal heirs, the deceased left no other surviving heirs. The mother of the deceased pre-deceased him. He executed his Last Will and Testament on 6.5.1968 and registered the same at Madras on the same day. The said will was executed by the testator in sound disposing mind in the presence of witnesses. The plaintiff was appointed as Executor in the said will. Two sons of the deceased viz. P.M.Selvasigamani and P.M. Kamalanathan had filed an application No.2415/82 and in the said application, the plaintiff was directed to file the original will of the deceased. Since the original will was misplaced and not traceable, the plaintiff filed a counter to the said application stating that the will being a registered one, a certified copy of the same may be filed by the applicants and that the plaintiff would produce the original will as and when it is traced. Prior to the said application, there were negotiations for an amicable settlement, but all attempts failed. Plaintiff's younger brother P.M.Kamalanathan, plaintiff's mother Karpagammal and the plaintiff's sisters Puspaveni, Mangalaveni, Hamsaveni, Pankajammal had all agreed for an amicable settlement and as an outcome of the discussion, the plaintiff's younger brother P.M. Kamalanathan had released his share in favour of the plaintiff, and the plaintiff's mother and sisters have also released their share if any in his favour, as per the release dated 3.3.83. Plaintiff's elder brother's son P.S.Mohankumar and P.S.Parameswaran have filed a suit in O.S. No.3192/83 on the file of the IV Assistant City Civil Court, Madras. The plaintiff has come forward with the present suit after a long duration for the reasons that he was under the impression that his elder brother having filed the said application would proceed further in the matter, but he has not done so; that there is no possibility for any amicable settlement between the parties; and that because the plaintiffs in O.S.3192/83 have falsely alleged that the property in the hands of the testator was ancestral, even though it has been specifically and categorically stated in the will that the property in the possession of the testator was self acquired. Hence, the delay in filing the suit may be condoned. Therefore, probate may be issued as prayed for.

8. On the above pleadings, the following issues were framed in TOS 3 6/87: 1. Whether the alleged will dated 6.5.1968 executed by late P.K. Madurai Muthu Mudaliar is true and valid? 2. Whether the plaintiff is entitled to probate of the will to have effect limited to the State of Tamil Nadu? 3. To what relief? 9. On the above pleadings, the following issues and additional issues were framed in CS 1620/93: ISSUES: 1. Whether the plaintiffs are entitled to 2/9 share as contended by them? 2. To what relief? ADDITIONAL ISSUES: 1. Whether the release deed dt.3.3.1983 is valid and would operate for the benefits of other members? 2. Whether the plaintiffs are entitled to 1/3rd share? 3. Whether D2 is liable for accounts? 4. Whether the plaintiffs are entitled to mesne profits?

11. In TOS 36/87 P.Ws.1 to 3 were examined and Exs.P1 to P20 were marked on the side of the plaintiff, and the first defendant examined himself as D.W.1 and marked Exs.D1 to D7. In CS 1620/93, the first plaintiff was examined as P.W.1, while the second defendant was examined as D.W.1. On a memo filed by the parties, the documents marked in CS 1620/93 were marked in TOS 36/87 on the respective sides.

12. Arguing for the plaintiff in TOS 36/87 and the second contesting defendant in CS 1620/93, the learned counsel would submit that the plaintiff in the testamentary proceedings has sought for the issue of a probate in respect of Ex.P1 Will dated 6.5.1968 executed by his father P.K.Madurai Muthu Mudaliar, wherein the plaintiff was appointed as the executor; that the said testator died on 10.7.1971 leaving behind him his widow, three sons and four daughters; that the executor originally filed the O.P. wherein all the legal heirs except the first son of the testator by name Selvasigamani, have given their consent affidavits stating that they had no objection for issue of probate in respect of the Will; that since the said Selvasigamani contested the proceedings by filing a caveat, the said O.P. was converted into the present suit; that it is surprise to note that the said Selvasigamani has neither appeared nor contested the suit, but has instigated his two sons to oppose the testamentary proceedings; that it remains to be stated that they had no right or interest in the property and they were not competent to oppose the proceedings also; that the said Selvasigamani has admitted the existence of Ex.P1 Will under Ex.D6 a notice issued by him through his lawyer; that it is pertinent to note that he has also admitted the same in an Original Application filed before this Court seeking production of the original Will; that the propounder has examined himself as PW1 and has also examined one of the attesting witnesses PW2 M.Baskaran, who has categorically spoken to the execution and attestation of the document; that apart from the said two witnesses, PW3 one of the identifying witnesses before the Sub Registrar has also been examined; that by adducing sufficient evidence through the said witnesses, the plaintiff has clearly established the execution of Ex.P1 testament, as required by law; that it is true that there was delay in initiating the testamentary proceedings to probate the Will; that the plaintiff has also satisfactorily explained the same in the course of his evidence; that the law does not prescribe any period of limitation for making any application for probate or letters of administration, but when there is a longer delay, the propounder has to explain the same in order to remove the suspicion that may arise due to the delay; that in the instant case, the plaintiff has well explained the delay that was caused by acceptable reasons, and under such circumstances, the court has to issue the probate in respect of Ex.P1 Will. Added further, the learned counsel that two sons of Selvasigamani have filed the instant suit for partition alleging that the suit properties which were the subject matter of Ex.P1 Will were ancestral and joint family properties, and hence, they were entitled to 1/3rd share in the properties; that according to the plaintiffs in the partition suit, Madurai Muthu Mudaliar and his brothers were members of the Hindu joint family, which owned lot of properties; that the properties that came to the hands of Madurai Muthu Mudaliar were joint family properties, and hence, it required division; that the grandfather of the plaintiff Madurai Muthu Mudaliar did not have any independent right over the said properties to make any disposition of the same; that it is pertinent to note that no proof is available to indicate that there was any joint family nucleus for purchase of the properties in question or there were any ancestral properties in the hands of Madurai Muthu Mudaliar and his brothers; that the said Madurai Muthu Mudaliar and his brothers entered into a partition under Ex.P16 dated 17.12.1945; that a very reading of the recitals therein would clearly indicate that there was no joint family nucleus; that the properties divided between the brothers were their self acquisitions, and hence, those acquisitions cannot be impressed with the incidents of joint family properties; that Madurai Muthu Mudaliar and his brothers could only be co-sharers, and in result, those properties could be passed by inheritance and not by survivorship; that on the date of execution of Ex.P1 Will, those properties were separate and self acquired properties of Madurai Muthu Mudaliar; that he has also executed Ex.P1 Will, wherein he has made disposition of the same; that the plaintiffs in the partition suit have no locus standi even to file the suit; that even assuming that the said Madurai Muthu Mudaliar did not execute any Will, the plaintiffs in the partition suit, who were the grandsons cannot maintain a suit, in view of the provisions of the Hindu Succession Act; that the said Selvasigamani, though shown as the first defendant in the partition suit, has remained exparte; that he has instigated his sons to file the said suit for partition; that even as per the admission of the first plaintiff in the partition suit, his father was attending to the court proceedings; that it is a fit case where adverse inference has got to be drawn against the plaintiffs in the partition suit on account of the non examination of the said Selvasigamani, who is a material witness in the suit and who could speak better about the acquisition and character of the suit properties; that insofar as the release deed executed by all other heirs of Madurai Muthu Mudaliar under Ex.P18 dated 3.3.1983, the plaintiffs in the partition suit cannot raise any question as to the validity of the said document, and thus, looked at from any point of view, the plaintiffs in the partition suit are not entitled to maintain the suit for partition, and it lacks bona fide also, and hence the said suit has got to be dismissed, while the suit for probate has got to be decreed.

      Ex.D1              Corporation extract of item A of plaint   schedule

      D2         Kist particulars of item B of plaint             schedule

      D3 3.3.83 Release deed


      D4 16.4.56 Sale deed by Madurai Muthu Mudaliar to
      J.D.Subramonia Mudaliar

      D5         Copy of application in TOS affidavit             and master
      summons for directing the                  plaintiff in TOS to produce
      the Will

      D6 11.12.86 Notice by the counsel for 1st defendant          in     CS
      1620/93 to 2nd defendant in TOS

      D7         Birth certificate of 2nd defendant's             daughter


                                                                 12-6-2002

      nsv/

                                                         M.CHOCKALINGAM, J.