SUGUNA BAI Vs. MUNIAMMAL ALIAS DHANALAKSHMI

JUDGEMENT

(1.) THIRD defendant in O.S.No.270 of 1980, on the file of he subordinate Judge's Court, Vellore, is the appellant before this Court.

(2.) SUIT filed by the plaintiff is one for partition. The property belonged to one Chengalvaraya Chetty, who died on 17.5.1979. At the time of his death, his wife was alive who has been examined in this case as D.W. 1. Defendants 3 and 4 are two daughters of the deceased. Plaintiff's mother, who predeceased Chengalvaraya Chettiar was also one of the daughters of the deceased. In this suit, plaintiff, being the daughter of the pre-deceased daughter, claimed that she is entitled to one-fourth share in the plaint items. Before the institution of the suit, a notice was issued to the defendants, seeking partition. A reply was sent whereby they asserted that the deceased has executed a registered Will by which defendants 3 and 4 are the sole legatees. Ex.B-8 is the Will. In the plaint, it was contended that the deceased has not executed such a Will and that it is a forgery. It was further contended that assuming for argument's sake that such a Will was signed by the diseased, it can only be due to coercion and fraud and undue influence exercised by defendants 3 and 4. It was further averred that the deceased was dominated by defendants 3 and 4 who had no independent advice, and there is no reason to disinherit his own widow and daughter of the predeceased daughter.

(3.) THE matter was taken in appeal by the plaintiff as A.S.No.265 of 1982, on the file of the Additional District Judge, Vellore. THE lower appellate court re-appreciated the evidence and came to the conclusion that the Will was not executed by the deceased or that there was any proof regarding the proper execution of the Will. THE evidence of D.Ws.4 and 5 does not satisfy the requirements of Sec.63 of the Indian Succession Act, nor has evidence been let in as expected under Sec.68 of the Evidence Act. Setting aside the judgment of the trial court, a preliminary decree was passed whereby the plaintiff was declared entitled to one-fourth share in the plaint item. THE correctness of the said decision is now challenged in this second appeal.