THULASIAMMAL Vs. PANDARASAMY

JUDGEMENT

(1.) The plaintiff in O.S.No.208 of 1997 on the file of the District Munsif Court, Virudhunagar is the appellant in this second appeal.

(2.) The suit was for partition of 1/5th share in the suit properties. The case of the plaintiff is that the suit properties originally belonged to her father Ramasamy Naicker. The first defendant Pandarasamy is the plaintiff's brother. The other three defendants are her sisters. Ramasamy Naicker passed away in the year 1987 itself. The mother of the parties also later passed away. Even though the plaintiff is having 1/5th share in the suit properties, her brother is declining to part with the plaintiff's share. Therefore, the suit came to be laid. The first defendant / brother of the plaintiff filed written statement controverting the plaint averments. The first defendant stated that the suit properties are not the ancestral properties but the self acquired properties of Ramasamy Naicker. Ramasamy Naicker had executed a Will dtd. 24/5/1978 in favour of the first defendant. Since the properties have already been bequeathed in favour of the first defendant, the suit for partition is not maintainable. Based on the divergent pleadings, the trial court framed the necessary issues. The plaintiff examined herself as P.W.1 and marked Ex.A1 to Ex.A5. The first defendant examined himself as D.W.1. A person said to be an attestor of the suit Will was examined as D.W.2. Ex.B1 to Ex.B27 were marked. After consideration of the evidence on record, the trial court passed preliminary decree as prayed for granting 1/5th share to the plaintiff by judgment and decree dtd. 30/11/1999. Challenging the same, the first defendant as well as the two sisters filed A.S.No.5 of 2000 before the Sub Court, Virudhunagar. By the impugned judgment and decree dtd. 7/9/2001, the decision of the trial court was reversed and the appeal was allowed and the suit came to be dismissed. Challenging the same, this second appeal came to be filed. The second appeal was admitted on 26/3/2007 on the following substantial questions of law:-

(3.) The learned counsel appearing for the appellant reiterated the contentions set out in the memorandum of grounds. He pointed out that the propounder of the Will has the burden to prove the same. In this case, D.W.2 was examined as attestor of Ex.B27-Will. But then, his identity was specifically challenged. The learned counsel for the appellant would contend that it has not been established that D.W.2 who deposed before the Court was actually the very same person who also attested the Will. This burden cannot be cast on the plaintiff. Therefore, the learned counsel for the appellant submitted that it must be concluded that the suit Will had not been proved in the manner known to law. He called upon this Court to answer the substantial questions of law in favour of the appellant and set aside the impugned judgment and decree and restore the decision of the trial court.