PAZHANATHAL Vs. ALAMATHAL

JUDGEMENT

(1.) Leave having been granted on 1/11/2013, these civil appeals arise out of the common judgment and decree dtd. 28/10/2008 passed by the High Court of Judicature at Madras in A.S. No. 231 of 1991 and Tr. A.S. No. 503 of 2002. By the impugned common judgment, the High Court allowed both first appeals preferred by the Respondents herein and decreed the Respondents' suit for permanent injunction by setting aside the common judgment and decree dtd. 22/1/1991 passed by the Trial Court, Additional Subordinate Judge - III, Coimbatore in O.S. No. 665 of 1985 and O.S. No. 1344 of 1990. The Trial Court had granted a preliminary decree for partition in favour of the Appellants in O.S. No. 665 of 1985 and dismissed the Respondents' suit for permanent injunction in O.S. No. 1344 of 1990.

(2.) The dispute is a family succession and partition dispute, centered on the legal proof, genuineness and effect of a registered Will dtd. 15/12/1976, marked as Ex.B-13, alleged to have been executed by Arukkaniammal, the issueless third wife of Vaiyapuri Gounder, the original owner. If Will (Ex.B-13) is proved in accordance with law, the respondent branch succeeds in respect of the A-schedule property. If the Will is not proved, the property inherited by Arukkaniammal from her husband would devolve, by operation of Sec. 15(2)(b) of the Hindu Succession Act, 1956 ("Hindu Succession Act" for short), upon the heirs of Vaiyapuri Gounder, and the appellants would be entitled to their share as per the partition decree granted by the Trial Court.

(3.) The principal question, therefore, is, whether the Will (Ex.B-13) is proved valid. That question requires the Court to distinguish between testamentary power, due execution and attestation, the statutory mode of proof, and the independent obligation of the propounders to remove suspicious circumstances. The validity of the Will is therefore the central issue, the questions of partition, possession and injunction being consequential.