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TMI Blog2019 (11) TMI 1448X X X X Extracts X X X X X X X X Extracts X X X X ..... 87 measuring about 1 acre 35 cents has not been included in the suit. The answer to this non-inclusion is that the property belonged to Ayyasamy and therefore non-inclusion of it in this suit which is with reference to the estate of Kanagayal will not render the suit bad for partial partition. It is also pointed out that out of the B schedule properties found in Ex.B8 Will only the first three items are made subject matter of the suit. Even there as regards item Nos.1 and 2 only a portion of it has been included in the suit. Whether only an extent of about 40 cents in the item Nos.1 and 2 and item No.3 belonged to Kanagayal ? - Admittedly, Kanagayal pre-deceased Ayyasamy and Ayyasamy had inherited a share in the estate of Kanagayal. That share necessarily forms part of the estate of Ayyasamy. Therefore, this suit which was instituted after the death of Ayyasamy cannot be treated as a suit for partition of the estate of Kanagayal alone. It is a suit for partition of the portion of the estate of Ayyasamy which was inherited by him after the death of Kanagayal. Therefore, the plaintiff in my considered opinion should have sued for partition of the entire estate of Ayyasamy and Kanagay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Kanagayal viz., Ayyasamy was working in Singapore and the suit properties were purchased in the name of Kanagayal out of the monies that were sent by him. Therefore, according to the 1st defendant, Kanagayal was not the absolute owner of the suit properties. 6. It is the further claim that Ayyasamy even during his life time had executed a registered Will on 22.06.1987 bequeathing certain properties in favour of the 1st defendant as well as the plaintiff. As per the said Will item Nos.1 to 3 of the suit properties were allotted to the 1st defendant and the 1st defendant has been enjoying the said properties as absolute owner thereof pursuant to the said Will. 7. Apart from the Will, Ayyasamy had also executed a Kor Chit by which he had allotted certain properties to the plaintiff and the 1st defendant. The 1st defendant would further contend that all the properties h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 name of the 1st defendant pursuant to the decree in O.S.No.110 of 1976 and therefore, it should also be treated as property of Kanagayal. As such the plaintiff as well as the defendants 3 to 6 would be entitled to a share in the suit properties. 14. The claim of the 1st defendant regarding partial partition was also rejected by the courts below, on the ground that DW1 in his evidence had admitted that except the property found included in Ex.B8 and Ex.B14 Wills, the family had no other properties to be divided. As regards the property purchased from Gurukkal, the courts below found that the said property was purchased by the plaintiff in his name out of his own income. Hence, the said property cannot be made subject matter of partition. It is against these concurrent findings of the courts below, the 1st defendant has come up with this Second Appeal. 15. Notice of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the Will. No attempt has been made to show the Will to the witness and require him to identify the signature of his father as attestor to the instrument. 24. Section 68 to 71 lay down special rules of evidence required for proving the documents that are required to be attested by law. While Section 68 requires atleast one of the attesting witnesses to be examined. Section 69 provides for the contingency where attesting witnesses are either dead or are not capable of testifying before the court. 25. Admittedly, in the case on hand, the attesting witnesses to Ex.B8 Will are dead. Then it is for the propounder, 1st defendant, to prove the Will either under Section 69 or Section 71 of the Evidence Act. Section 71 of the Evidence Act cannot be invoked in the case on hand as it would apply only when the attesting witness denies attestation or he is unable to recall the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 appearing for the 1st respondent/ plaintiff would submit that the 1st defendant is precluded from raising such a plea in view of the provisions of Prohibition of Benami Property Transactions Act, 1988. According to the counsel, Section 3 of the Prohibition of Benami Property Transactions Act, 1988 as it stood prior to the amendment creates a presumption that any property purchased by a person in the name of his wife or unmarried daughter is presumed to have been purchased for the benefit of the wife or unmarried daughter unless the contrary is proved. Therefore, according to Mr.S.Sounthar, the burden is on the 1st defendant to show that the purchase was not made with an intention to benefit Kanagayal and the property was always treated as a family property. 31. These submissions of the counsel for the respondent is countered by Mr.A.Muthukumar contending that the very ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... end 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 evidence produced that all the properties subject matter of the Wills have not been included in the suit. The 'A' Schedule property found in the Will dated 22.06.1987 measuring about 1 acre 35 cents has not been included in the suit. 38. The answer to this non-inclusion is that the property belonged to Ayyasamy and therefore non-inclusion of it in this suit which is with reference to the estate of Kanagayal will not render the suit bad for partial partition. It is also pointed out that out of the 'B' schedule properties found in Ex.B8 Will only the first three items are made subject matter of the suit. Even there as regards item Nos.1 and 2 only a portion of it has been included in the suit. According to Mr.S.Sounthar, only an extent of about 40 cents in the item Nos.1 and 2 and item No.3 belonged to Kanagayal. Hence, only 71 cents out of 1 acre 43 cen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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