9911796707
TMI Blog2019 (11) TMI 1448X X X X Extracts X X X X X X X X Extracts X X X X ..... led a suit in O.S.No.110 of 1976 seeking specific performance. The said suit was decreed. However, the sale deed was taken in the name of the 1st defendant. Therefore, according to the plaintiff, the suit properties are the absolute properties of Kanagayal who died leaving behind the plaintiff and the defendants 1 and 2 as her legal heirs. 3. Since the 2nd defendant Kumadhavalli @ Kumudha died pending suit, the defendants 3 to 6 were impleaded as her legal representatives. The 7th defendant was impleaded on the plea that he has purchased item Nos.4 to 7 from the 1st defendant. It was claimed that the sale by the 1st defendant in favour of the 7th defendant is not binding on the plaintiff. On the above contentions, the plaintiff sought for partition as stated above. 4. The defendants 3 to 6 who were impleaded as legal representatives of the deceased 2nd defendant conceded the case of the plaintiff and sought for partition of their 1/3rd share also as legal representatives of the deceased 2nd defendant. 5. The 1st defendant filed a written statement contending that the suit as framed is not maintainable. According to the 1st defendant, the father of the parties and husband of Kana ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not entitled to any share in the property. To buttress the said claim, the 1st defendant also referred to the contents of the Will dated 22.06.1987 said to have been executed by Ayyasamy. 11. As regards the 8th item it was contended that the said property belongs absolutely to the 1st defendant and the plaintiff cannot plead that it is a benami purchase. Additional written statement was filed by the 1st defendant contending that the property purchased from Gurukkal and other family properties were not included in the suit and hence, the suit is bad for partial partition. 12. At trial, the power agent of the plaintiff/ his wife was examined as PW1. Ulaganathan, Manoharan and Sundaramoorthy were examined as PW2 to PW4. The 1st defendant was examined as DW1. One Ilangeswaran was examined as DW2. Since he did not subjected himself to cross examination his evidence was eschewed. Govindasamy and Natarajan were examined as DW3 and DW4. 13. The trial court on a consideration of the evidence on record concluded that the 1st defendant had not proved the Wills dated 22.06.1987 and 18.05.1991 as required under law. The trial court also found that the suit item No.8 was purchased in the nam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aw my attention to the evidence of PW1, wherein she had admitted the signatures of Ayyasamy in the said Will. The relevant portion of the cross examination reads as follows:- 20. Relying upon the said admission, Mr.A.Muthukumar, learned counsel would contend that the courts below were not right in concluding that the 1st defendant has not proved the execution of the Will dated 22.06.1987. 21. Contending contra Mr.S.Sounthar, learned counsel appearing for the 1st respondent would submit that being a Will, Ex.B8 should be proved in the manner required under Sections 68 or 69 or 71 of the Evidence Act. He would also draw my attention to the evidence of the attesting witness viz., DW4, who is the son of the attesting witness and contend that he has not identified the signature of the attesting witness in the original Will. 22. Mr.S.Sounthar, would contend that the provisions of Section 69 of the Evidence Act regarding the proof of Will has not been complied with. The proof affidavit filed by DW4 reads as follows:- 23. A perusal of the above evidence would show that the original Will has not been shown to the witness DW4. He has filed his proof affidavit based on the xerox copy of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cross examination. He had in fact deposed that there are differences in the signature of Ayyasamy found in Ex.B8 and Ex.B14. He is unable to remember the place where the Will is executed. 28. His evidence in my considered opinion is wholly insufficient to conclude that the execution of the Will dated 18.05.1991, Ex.B14 has been proved. I therefore conclude that the courts below were right in holding that the 1st defendant has miserably failed to prove the execution of two Wills viz., Ex.B8 and Ex.B14 by Ayyasamy. 29. Now coming to the questions of law framed, Mr.A.Muthukumar, learned counsel appearing for the appellant would contend that though there was a specific plea that the suit properties were purchased with the aid of the monies sent by Ayyasamy who was admittedly working in Singapore in the name of his wife Kanagayal, the courts below have not framed an issue on the said question. They have not gone into the said question also. Therefore, according to him, the failure on the part of the courts below to have framed an issue on the vital question of title, the judgments and decrees as rendered cannot be sustained. 30. Contending contra Mr.S.Sounthar, learned counsel appear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed by Kanagayal from and out of the monies sent by Ayyasamy. 34. The second question of law relates to partial partition. Mr.A.Muthukumar, learned counsel appearing for the appellant would vehemently contend that some of the items of properties which were subject matter of the Wills Ex.B8 and Ex.B14 have not been included in the suit. He would also further contend that the other properties standing in the name of Ayyasamy have not been made subject matter of the suit. Therefore, according to him the suit is bad for partial partition. 35. Mr.S.Sounthar, learned counsel appearing for the 1st respondent would however draw my attention to the evidence of DW1, wherein, he had admitted that there are no other properties available for partition, apart from properties that are subject matter of these two Wills. Relying upon the said evidence, Mr.S.Sounthar, would contend that the suit is not bad for partial partition. 36. Mr.S.Sounthar, would also contend that the suit relates to partition of estate of Kanagayal and therefore the non-inclusion of the properties that formed part of Ayyasamy's estate would not make the suit bad for partial partition. 37. It is clear from the eviden ..... X X X X Extracts X X X X X X X X Extracts X X X X
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