Balathandayutham & Anr vs Ezhilarasan on 16 April, 2010
6. Shri R. S. Kalangiwale, learned Counsel for the
appellants - defendants submitted that the appellate Court having
held that the suit property was the self acquired property of Dhadu
and the plaintiff having admitted execution of the Will dated
9-6-1989 in favour of the defendant Nos.1 and 2, it could not have
held that the plaintiff had 5/16 th share in the suit property. The
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execution of the Will having been admitted by the plaintiff, it was
not necessary for the defendants to prove the same. Without
considering this aspect, the Courts examined the validity of the
Will and held against the defendants. Placing reliance on the
decision in Balathandayutham and another vs. Ezhilarasan (2010)
5 SCC 770, it was thus submitted that it was not necessary for the
defendants to prove the Will dated 9-6-1989. It was then
submitted that the trial Court did not frame any specific issue with
regard to the validity of the Will while decreeing the suit. This fact
was noted by the first appellate Court in para 11 of its judgment
and therefore the appellate Court ought to have remanded the suit
with a direction to frame an issue with regard to the validity of the
Will in question. The same was however not done. In absence of
any specific issue being framed, prejudice was caused to the
defendants.