2026:MHC:4053A.S(MD)No.196 of 2018

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

Reserved on : 08.07.2026

Pronounced on : 01.10.2026

CORAM

THE HONOURABLE MR.JUSTICE P.VADAMALAI

AS(MD) NO. 196 of 2018

{CNR: HCMD011030932018}

Case QR

and

C.M.P(MD)No.11578 of 2018

V.K.Krishnan (Died)

1.V.K.Jegannathan,

S/o.V.K.Krishnan,

9/6, Gurusady Lane,

Madurai - 625 001.

2.V.K.Sudharsanan,

S/o.V.K.Krishnan,

9/6, Gurusady Lane,

Madurai - 625 001.

3.G.K.Gayathri,

D/o.V.K.Krishnan,

9/6, Gurusady Lane,

Madurai-625 001.

4.V.K.Anusuya,

W/o.V.K.Krishnan,

9/6, Gurusady Lane,

Madurai - 625 001. ... Appellants/Plaintiffs

Vs.

1.V.K.Janarthanan,

S/o.V.K.Kesavaram,

175, East Veli Street,

Madurai - 625 001.

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2026:MHC:4053A.S(MD)No.196 of 2018

2.M.S.Saroja,

W/o.Sankaran,

229-A, Lakshmipuram,

Palani-2,

Dindigul District.

3.K.K.Indira,

W/o.Late.Kuppusamy,

72 - D/1, Ishmailpuram 19th Street,

Munichalai,

Madurai - 625 009.

4.V.K.Ramila (Died)

5.R.Chandravathy,

W/o.Rajendran,

14, North Car Street,

Palani,

Dindigul District.

6.G.C.Lalitha,

W/o.Chandrasekaran,

25, Venkateshwara Colony 11

th

Street,

Madhavaram Milk Colony,

Chennai - 51.

7.V.K.Lakshmi,

W/o.M.D.Poornachari,

8, Bharathi Nagar 4

th

Street,

Krishnapuram Colony,

Madurai-625 014.

8.K.M.Sakunthala,

W/o.Muralitharan,

17, Krishnapuram Colony, 5th Street,

Madurai - 625 014.

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2026:MHC:4053A.S(MD)No.196 of 2018

9.A.Kuberan,

S/o.Arumuga Perumal Naidu,

3, Panthadai 2nd Street,

Madurai - 625 001.

10.V.K.Lakshmanan,

S/o.V.K.Kesavaram,

6, Gurusadi Lane,

Madurai-625 001.

11.V.K.Thulasiram,

S/o.V.K.Kesavaram,

5/12/39, Annai Therasa Street,

Vivekananda Avenue,

Valluvar Colony Extension,

Madurai - 625 014. ...Respondents/Defendants

(Memo dated 01.06.2026 filed on 02.06.2026 in USR.No.18403 is

recorded as R4 died and appellants 1 to 4 and respondents 1 to 3, 5 to 8,

10 and 11, who are already on record, are the legal heirs of the deceased

R4 vide Court order dated 04.06.2026 made in A.S(MD)No.196 of 2018)

PRAYER: This Appeal Suit is filed under Order 41 Rule 1 and 2 of CPC r/w

Section 96 of CPC., to set aside the judgment and decree dated 26.02.2018

passed in O.S.No.229 of 2004 by the V Additional District Judge, Madurai, by

allowing this appeal, thereby decreeing the suit as prayed for with costs.

For Appellants : Mr.K.V.Ravichandran

For R1 & R6 : Mr.V.N.Arjun

for Mr.N.Vallinayagam

For R2, R3, R5,

R7 & R8: Dr.M.D.Poornachari

For R10 : Mr.S.Balakrishnan

R4 : Died

R9 & R11 : Dismissed for Default

vide Court order dated 09.08.2019

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2026:MHC:4053A.S(MD)No.196 of 2018

JUDGMENT

This Appeal Suit is directed against the judgment and preliminary

decree dated 26.02.2018 passed in O.S.No.229 of 2004 by the learned

V Additional District Judge, Madurai.

2. The appellants are the plaintiffs in O.S.No.229 of 2004 on the file of

the V Additional District Judge, Madurai. The respondents 1 to 11 are the

defendants 1 to 11 in that suit. The appellants/plaintiffs filed the suit for

partition seeking for 2/5 + 2/11 share in the suit properties and for permanent

injunction restraining the defendants from interfering with the plaintiffs’

possession or alienation or encumbering the suit properties.

3. For the sake of convenience, the parties are referred to as per their

rank before the trial Court.

4. The brief facts are as below:

(a) The case of the plaintiffs (appellants herein ) :-

The 1st plaintiff and defendants 1 to 8, 10 & 11 are siblings and they

were born to V.K.Kesavaram. The father of V.K.Kesavaram, is Vaithiam

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2026:MHC:4053A.S(MD)No.196 of 2018

Kuppusamy Iyer, who was a Sidha Vaithiyar and was running Sidha Vaithiya

Medicine. After his death, V.K.Kesavaram continued the profession.

The 1st item is ancestral property of the 1st plaintiff and his siblings. The other

items of the suit properties were purchased from the income of the ancestral

property. All the properties were enjoyed as ancestral properties.

When V.K.Kesavaram was alive, the marriage of the 2nd defendant was

solemnized. V.K.Kesavaram died on 05.07.1975 intestate. Thereafter, the

marriages of defendants 3, 5 to 7 and 8 were performed by the 1st plaintiff

from his own money. The said marriage expenses have to be provided at the

time of partition. The 1st plaintiff and the defendants 1, 10 & 11 are entitled to

1/5 + 1/11 share each in the suit properties. The defendants 2 to 8 are entitled

to 1/11 share each in the suit properties. The defendants 4 and 10 remained

unmarried. The defendants 1 to 8 and 10 colluded together against the

plaintiffs and created a fraudulent document in favour of the 9th defendant in

respect of the 3rd item of the suit property. The plaintiffs demanded amicable

partition, but the defendants evaded. Hence, the plaintiffs filed the suit.

(b) The case of the defendants 1 and 6:-

The suit properties are not ancestral properties. The 1st item was gifted

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to the father of these defendants, namely V.K. Kesavaram, by his great

grandmother Kumba Veerammal. Their father V.K.Kesavaram did business

separately and not jointly with his father Vaidhyam Kuppusamy Iyer. The said

Vaidhyam Kuppusamy Iyer was living with his second wife and her children

separately. The father of these defendants, V.K.Kesavaram, purchased items

2 and 3 out of his own income in the years 1959 and 1962, respectively.

So, the suit properties are self acquired properties of V.K. Kesavaram, and he

died intestate. So, his children are entitled to share 1/11th each in the suit

properties. The share stated by the plaintiffs in the plaint is incorrect.

The marriage expenses of the defendants 1, 3, 5, 6 and 7 were met from the

common family fund and not met by the 1st plaintiff. With consent of the

plaintiffs, the defendants 1 to 8 have sold their share in the 3rd item to the

9th defendant. So, the defendants 1 and 6 are entitled to 2/11 share in items

1 and 2 of the suit properties. The relief of injunction against the co-owner is

not maintainable. The 4th item of the suit property was purchased by the

1st defendant from out of his own income. Then he settled the 4th item of the

suit property to his mother through a registered settlement deed on 15.08.1983.

Thereafter, during her lifetime, she bequeathed the 4th item to her daughters,

namely the defendants 2 to 8. After the demise of the mother, the defendants

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2 to 8 are entitled to the 4th item. The 7th item is the same as the 4th item.

The 5th item was the exclusive property of the 4th defendant and she sold

away the same. The 9th item is also nothing but the 2nd item of the suit

property. The 10th item of the suit property is exclusive property of the 3rd

defendant.

(c) The case of the 2

nd

defendant :-

The relationship stated in the plaint is correct. This defendant is the

eldest daughter of her father, V.K.Kesavaram, and assisted him in his siddha

medicine business along with his eldest son. The 1st item of suit property is not

ancestral property. The averment that the items 2 and 3 of suit properties were

purchased out of ancestral income is denied. Their father V.K.Kesavaram died

intestate on 05.07.1975. So, this defendant is entitled to an equal share in the

suit properties as the properties of V.K.Kesavaram. During his lifetime, this

defendant’s marriage was solemnized. The marriages of other defendants were

performed out of income derived from family properties. The plaintiffs have to

prove that the marriages of defendants 3, 5 to 8 were met out by the 1st

plaintiff’s income. The share claimed by the plaintiffs as 1/5 and 1/11 in all

items is not correct. The averment that the defendants 2 to 8 colluded against

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the plaintiffs is incorrect. Only with the consent of the 1st plaintiff and the

defendants 10 and 11, the defendants 1 to 8 sold the suit 3rd item property to

the 9th defendant. So, the 3rd item is not available for partition. The plaintiffs

have to prove the existence and possession of the other items of the suit

properties.

(d) The case of the defendants 3, 4, 5, 7 and 8:-

The 1st item of suit property was gifted by grandmother Kumba

Veerammal to V.K.Kesavaram, who is the father of the plaintiffs and the

defendants 1 to 8, 10 and 11. The item Nos.2 and 3 were purchased by

V.K.Kesavaram from income obtained by doing hereditary siddha vaithyam

practice with the help of plaintiffs and defendants 1 to 8, 10 and 11.

Their father V.K.Kesavaram died on 05.07.1975 intestate. The marriages of the

defendants were solemnized with common family fund. With consent of the

1st plaintiff, the 3rd item was sold to the 9th defendant. There is no collusion

between the defendants 1 to 8 and 9. The 4th item (same as the 7th item) is in

possession of these defendants by virtue of a Will executed by their mother in

1985. The 10th item was purchased by the 3rd defendant and hence, it is her

exclusive property. The plaintiffs have to prove the existence of the other items

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for partition. The plaintiffs have added the other items according to their

whims and fancies with a view to drag the suit.

(e) The case of the 9

th

defendant:

Except for the 2nd defendant, the other defendants have sold the 3rd

item of suit properties to this defendant under sale deeds dated 02.02.1998 and

16.02.1998 even prior to the filing of the suit. So, the suit against this

defendant became infructuous. The plaintiffs have no cause of action against

this defendant.

(f)The case of the 10

th

defendant:

Originally, the suit for partition was filed in respect of three items only.

The plaintiffs have added the other items during pendency of the suit.

This defendant has purchased the 8th item out of his own income by doing

lottery business. This defendant is in exclusive possession and enjoyment of

the 8th item.

(g)The case of the 11

th

defendant:

The relationship stated by the plaintiffs is admitted. The 1st item is

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ancestral property. The suit items 2 and 3 were purchased by his father out of

income from ancestral property. His father died intestate on 05.07.1975.

The 4th and 7th items were purchased from out of family income in the name

of the 1st defendant. At that time, the 1st defendant was studying in college.

So, he has no exclusive right over the 4th and 7th items. The transfer of that

property to their mother by the 1st defendant was only as a name lender.

The 4th item was enjoyed as joint family property. The items 5 and 6 were

purchased from out of family income in the name of defendants 4 and 8, so

defendants 4 and 8 have no exclusive right over the same. As the 3rd defendant

became a widow within a few years, the 10th item was purchased in her name

from income of family. The alleged settlement deed dated 15.08.1983 executed

by the 1st defendant in favour of their mother is not valid. Based on that

settlement deed, their mother executed a Will dated 16.08.1985 in favour of

defendants 2 to 8, which is also not a valid one. Moreover, their mother was

bedridden without consciousness from 1985 onwards. The items 4 to 10 were

purchased by income derived from the business run by the 1st plaintiff and

defendants 1, 10 and 11. So, this defendant is entitled to a 1/5 share in items

1 to 3 and a 1/4 share in items 4 to 10.

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5. The trial Court framed the following issues upon the pleadings of both

parties.

(1) Whether the plaint schedule properties

are joint family properties and whether the

properties are available for partition?

(2) Whether the plaintiffs are entitled to 1/5th

+ 1/11th share over the plaint schedule properties

as prayed for?

(3) If the plaint schedule properties are

partible to parties, what will be their share?

(4) Whether the plaint schedule properties

are co-parcenary properties or not?

(5) Whether the marriage expenses of

defendants 2 to 8 are to be reduced from their

respective shares?

(6) Whether there should be any allotment to

the 4th and 10th defendant towards their marriage

expenses at the time of partition?

6. During trial, on the plaintiffs' side, the 2

nd

plaintiff was examined as

P.W.1 and Ex.A.1 to Ex.A.30 were marked. On the defendants' side, defendants

1 to 4, 10 and 11 were examined as D.W.1 to D.W.6 and Ex.B.1 to Ex.B.28

were marked.

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7. On appreciation of the evidence and the submissions made on behalf

of the parties, the trial Court has held that the plaintiffs are entitled to share

only in items 1 and 2 of the suit properties and that the other items 3 to 10 are

not partible, and the marriage expenses for defendants 2 to 8 cannot be

accounted for at the time of partition. Thereby, the trial Court passed a

preliminary decree entitling the plaintiffs and defendants 1 to 8, 10 and 11 to

1/11 share each in suit items 1 and 2 and dismissing the suit in other respects

by its judgment dated 26.02.2018.

8. Aggrieved by the judgment and preliminary decree of the trial Court

dated 26.02.2018, the plaintiffs have preferred this appeal.

8.1. The defendants have not preferred any appeal separately or filed any

cross appeal.

9. The learned counsel for the appellants/plaintiffs submitted that

originally the 1st plaintiff and the defendants 10 & 11 filed the suit for partition

in respect of items 1 to 3 of the suit properties as they are ancestral properties

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of the father of parties V.K.Kesavaram and also sought for marriage expenses

of defendants 2 to 8 as it was met out by the 1st plaintiff. As the plaintiffs

2 and 3 have not cooperated with the 1st plaintiff, they were transposed as

defendants 10 and 11 during pendency of the suit. The 1st plaintiff died

pending suit and hence, the plaintiffs 2 to 5 were added as his legal heirs.

The trial Court held that the suit items 1 and 2 are absolute properties of

V.K.Kesavaram and granted 1/11 share each to the plaintiffs and legal heirs of

V.K.Kesavaram. Now, the plaintiffs are not pressing the plea of joint family

properties and are also not pressing the claim towards marriage expenses.

The plaintiffs concede that the item Nos.2 and 4 are repeated as item Nos.9 and

7 respectively as held by the trial Court in paragraph No.26. They also concede

that item No.3 was sold to the 9th defendant as held by the trial Court in

paragraph No.25. So, now there are only seven items available for partition,

out of which, the plaintiffs are not claiming partition except the items 1, 2 = 9,

4 = 7 and 5.

10. The learned counsel for the plaintiffs submitted that in respect of

items 1 and 2, there is no cross appeal or separate appeal filed by the

defendants. So, the finding of the trial Court that the suit items 1 and 2 are

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available for partition and allotment of share to the plaintiffs and defendants

1 to 8, 10 and 11 became final. The plaintiffs have also admitted the share.

11. The learned counsel for the plaintiffs further submitted that the suit

item No.4 = item No.7 is concerned, it is admitted that the 1st defendant has

purchased the said property by virtue of Ex.A.3 and later, he executed a

registered Ex.A.4 settlement deed in favour of mother Kuppammal.

The mother Kuppammal died on 18.01.1989. Now, the defendants 2 to 8 claim

that their mother executed Ex.A.5 Will. But, the defendants 2 to 8 have not

proved the Will as required by law by examining any one of the attesting

witnesses and scribe. Even the defendants 2 to 8 have not produced the original

Will. However, the defendants 2 to 8 state that they themselves partitioned the

4th item by way of Ex.B.18 deed dated 20.02.2006. In the absence of proof of

Ex.A.5 Will, the defendants have no absolute right over the item No.4 and so

Ex.B.18 is not a valid one. Therefore, the item No.4 is available for partition

and hence, the plaintiffs and defendants 1 to 8, 10 and 11 are entitled to an

equal share in it.

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12. The learned counsel for the plaintiffs submitted that the plaintiffs

admit that the 4

th

defendant purchased the suit item No.5 in her name under

Ex.A.6 sale deed. The 4

th

defendant is unmarried and a spinster and after filing

appeal she died on 26.09.2020. As per section 15 of Hindu Succession Act the

plaintiffs and the defendants 1, 2, 3, 5 to 8 and 10, 11 are her legal heirs and so

they are entitled to equal share in item No.5.

13. The learned counsel for the plaintiffs has now submitted that since

one of the legal heirs of V.K.Kesavaram died a spinster, the shares of plaintiffs

and other defendants except 9th defendant enlarges to 1/10 each and hence, the

plaintiffs are entitled to 1/10 share in items Nos.1, 2, 4 and 5. The plaintiffs

fairly concede that item Nos.2 and 9 are one and same. So also, item Nos.4

and 7 are one and the same. The learned counsel for the appellants lastly

submitted that the finding of the trial Court in respect of item Nos.1 and 2 may

be confirmed, but set aside in respect of item Nos.4 and 5 and modify the

preliminary decree granting enlargement of share as 1/10 share in items 1, 2, 4

and 5. In other respects, the plaintiffs are not pressing the suit.

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14. Per contra, the learned counsel for the respondents 2, 3, 5, 7 and 8

has argued that the suit properties, item Nos.1 to 3, are not coparcenary

properties of the father V.K.Kesavaram. There is no pleading regarding

coparcenary properties. Hence, they are his self-acquired properties and his

daughters are also entitled to an equal share as that of a son. The 4th item is

the absolute property of the mother, who executed a registered Will in favour

of defendants 2 to 8, so the plaintiffs are not entitled to share in item No.4.

The marriage expenses of these defendants were met from the source generated

from the common family fund only. So, they are not liable to pay any marriage

expenses as claimed by the plaintiffs and hence no amount is to be reduced.

These defendants are also entitled to 1/11 share in the suit properties.

Further, during pendency of the appeal, the 4th defendant died as unmarried on

26.09.2020. So, the distribution of her share in the suit properties can be

considered in the final decree proceeding, and the same cannot be considered

in this appeal. In support of his argument, the learned counsel relied on the

following citations:

(1) (2008) 1 MLJ 610 of Madras High

Court in the case of Amudha Rani and 2 Others.

/v/ K.Veeraraghavan @ K.V.Raghavan and

4 Others.

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(2) (2009) 6 Supreme Court Cases 99 in

the case of G.Sekar /v/ Geetha and Others.

(3) (2011) 9 Supreme Court Cases 788 in

the case of Ganduri Koteshwaramma and

Anr. /v/ Chakiri Yanadi and Anr.

(4) (2012) 1 MLJ 216 of Madras High

Court in the case of K.A.Shanmugam and

Anr. /v/ Tamilarasi and Ors.

15. The learned counsel for the defendants 1 and 6 adopted the

arguments of defendants 2 to 8 and filed a memo to that effect by relying on a

ruling reported in AIR 1987 SC 558.

16. The learned counsel for the 10th defendant has submitted that the

suit item No.10 absolutely belonged to him. The plaintiffs have not pleaded

anything about item Nos.3 to 10. Without prior pleading, they were included

under Order 6 Rule 17 of CPC. So, the plaintiffs are entitled to share only in

item Nos.1 and 2 and hence, the preliminary decree passed by the trial Court

may be confirmed.

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17. In reply, the learned counsel for the plaintiffs has submitted that all

properties were purchased from joint family earnings. The defendants

contended that they were self acquired properties of father V.K.Kesavaram.

The plaintiffs conceded the same. Item No. 4 was purchased by the

1st defendant, in turn, he settled it in favour of his mother. The mother died

intestate. Though the defendants stated that the mother executed a Will, the

same was not proved. In a suit for partition, all parties are deemed to be

plaintiffs, and the written statement can be taken as the plaint, so pleadings in

respect of other items are available in the suit. The 4th defendant died a

spinster. Hence, the plaintiffs are the legal heirs as per Section 15 of the Hindu

Succession Act. The plaintiffs also admit that the suit properties are not

ancestral properties. All legal heirs of V.K.Kesavaram are entitled to an equal

share. So, the citations relied on by the defendants are not necessary.

18. I have carefully considered the arguments advanced by all the parties

in respect of their respective cases and perused the records of the case.

19. The points for consideration in this appeal are:

1.Whether the plaintiffs are entitled to a

1/10 share in the items 1, 2, 4, 5 of the suit

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properties?

2.Whether Ex.A5 Will dated 16.08.1985 in

favour of defendants 2 to 8, is proved as per law?

3. Whether the judgment and decree of the

trial Court is to be modified and whether the

appeal is to be allowed?

20.Point Nos.1 to 3:

On hearing both sides and on perusing the material records along with

grounds of appeal, both sides admitted that the suit properties, item Nos.1 to 3,

are properties of V.K.Kesavaram, who is the father of the 1st plaintiff and

defendants 1 to 8, 10 and 11. There is no dispute that the suit was originally

filed by the 1st plaintiff and the defendants 10 & 11 in respect of item Nos.1 to

3 of suit properties. The defendants 10 and 11, as plaintiffs 2 and 3, have not

cooperated with the 1st plaintiff; and they were transposed as defendants.

The 1st plaintiff died pending suit and hence the plaintiffs 2 to 5 were added as

his legal heirs. The trial Court held that the suit items 1 and 2 are absolute

properties of V.K.Kesavaram and granted 1/11 share each to the plaintiff and

legal heirs of V.K.Kesavaram. Now, the plaintiffs are not pressing the plea of

joint family properties and also not pressing the claim towards marriage

expenses. The plaintiffs concede that items 2 and 4 are repeated as item Nos.9

and 7 respectively, as held by the trial Court in paragraph No.26. They also

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concede that item No.3 was sold to 9th defendant as held by the trial Court in

paragraph No.25. So, now there are only seven items available for partition,

out of which the plaintiffs are not claiming partition in respect of item Nos.3, 6,

8 and 10. So, the contention of the defendants 2 to 8 that they have sold item

No.3 with the consent of the plaintiffs to the 9th defendant is upheld. The item

No.6 belonged to the 8th defendant is also admitted. Also the 8th item was

purchased by the 10th defendant is accepted. The 10th item of the suit property

belonged to the 3rd defendant through Ex.A.8, is also admitted. In respect of

items 1 and 2, there is no cross appeal or separate appeal by other defendants.

Hence, the finding of the trial Court in respect of item Nos.1 and 2 is

confirmed. The 9th item is a repetition of the 2nd item and the 7th item is a

repetition of the 4th item is admitted. So, item Nos.4 and 5 have to be

discussed in this appeal.

21. It is the case of the plaintiffs that the 4th item was purchased by the

father V.K.Kesavaram from out of the family business. It is the definite case of

the 1st defendant that he purchased item No.4 out of his own income through

Ex.A.3 sale deed dated 01.03.1980. It is his further case that he executed a

settlement deed under Ex.A.4 in favour of his mother Kuppammal. There is no

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dispute in these facts. But, the defendants claim that the mother Kuppammal

executed a registered Will Ex.A.5 dated 16.08.1985 in favour of the defendants

2 to 8 in respect of 4th item. The trial Court has accepted the case of

defendants 2 to 8 that the defendants are entitled to item No.4 by virtue of

Ex.A.5 Will. But it is a settled proposition of law that even though a Will is

registered one, the same has to be proved in accordance with law under the

Indian Evidence Act. The same is silent in the discussion. So, the finding of the

trial Court in respect of Ex.A.5 Will is wrong. Because even though the Will

was stated to be registered, the same has to be proved according to law.

The material records of this case reveal that the certified copy of the Will has

been marked as Ex.A5. As rightly argued by the plaintiffs, the defendants have

not marked the original Will to substantiate their case subject to cross

examination by contesting parties.

22. According to the settled legal principle that a document is presumed

to be genuine if the same is registered, as held by the Hon’ble Supreme Court

in Prem Singh and Ors. v. Birbal and Ors. The relevant portion of the said

decision reads as below:

“27. There is a presumption that a registered

document is validly executed. A registered document,

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therefore, prima facie would be valid in law. The onus

of proof, thus, would be on a person who leads evi-

dence to rebut the presumption. In the instant case,

Respondent No.1 has not been able to rebut the said

presumption.”

(emphasis supplied)

However, in respect of Will, though it is a registered one, it must be

proved by evidence. It is settled law that the registered document in respect of

immovable property can be taken as authenticate, at the same time, any Will in

respect of immovable property the said Will cannot be presumed to be valid

until it is proved as per Sections 63 of Indian Succession Act and 68 of the

Indian Evidence Act.

23. The Hon’ble Supreme Court in its judgment delivered in Leela &

Others /vs/ Murugananthan & Others case in Civil Appeal No.7578 of

2023 on 02.01.2025 reported in 2025 INSC 10 held as follows:

20.There can be no doubt with respect to the

manner in which execution of a Will is to be proved.

In the light of plethora of decisions including the

decisions in Moturu Nalini Kanth v. Gainedi Kaliprasad

(Dead, through Lrs.) 2 and in Derek AC Lobo’s case

(supra) this position is well settled that mere registration

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of a Will would not attach to it a stamp of validity and it

must still be proved in terms of the legal mandates under

the provisions of Section 63 of the Indian Succession Act

and Section 68 of the Evidence Act. It is not the case of

the appellant that the Will dated 06.04.1990 is a

registered one.

21.Now, Section 63 of the Succession Act reads

thus:-

“63.Execution of unprivileged wills.—Every

testator, not being a soldier employed in an

expedition or engaged in actual warfare, [or an

airman so employed or engaged,] or a mariner at

sea, shall execute his will according to the following

rules:—

(a) The testator shall sign or shall affix his

mark to the will, or it shall be signed by some other

person in his presence and by his direction.

(b) The signature or mark of the testator, or the

signature of the person signing for him, shall be so

placed that it shall appear that it was intended

thereby to give effect to the writing as a will.

(c) The will shall be attested by two or more

witnesses, each of whom has seen the testator sign or

affix his mark to the will or has seen some other

person sign the will, in the presence and by the

direction of the testator, or has received from the

testator a personal acknowledgment of his signature

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or mark, or of the signature of such other person;

and each of the witnesses shall sign the will in the

presence of the testator, but it shall not be necessary

that more than one witness be present at the same

time, and no particular form of attestation shall be

necessary.”

22.Section 68 of the Evidence Act makes it

clear that at least one attesting witness has to be

examined to prove execution of a Will. It is true that

in the case at hand DW2 was the attesting witness

who was examined in Court. Therefore, the question

is whether they had deposed to the effect that the Will

in question was executed in accordance with

sub-rules (a) to (c) thereunder.

23.The Trial Court rightly held that the

propounder of the Will has to establish by

satisfactory evidence that the Will was signed by the

testator, that the testator at the relevant time was in a

sound disposing state of mind and that he understood

the nature and effect of the dispositions and put his

signature out of his own free will.”

24. In this case, the defendants have not examined any attestator to the

Will or Scribe to the Will as a witness to prove the Will. The Ex.A.5 Will was

said to be executed on 16.08.1985 by the mother Kuppammal in favour of the

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defendants 2 to 8. The plaintiffs stated that their mother Kuppammal had been

bedridden without consciousness from the year 1985 till her death. The said

Kuppammal died on 18.01.1989. The defendants have not disproved the said

contention of the plaintiffs by examining any other material witnesses.

Only the contesting defendants alone gave evidence on their side. There is no

independent witness or attesting witness who was examined. So, the ExA.5

Will was not proved by the defendants as rightly argued by the plaintiffs' side.

Hence, this Court is of the considered view that item No.4 is available for

partition and the finding of the trial Court in this respect is liable to be set

aside.

25. In respect of item No.5, there is no dispute that the 4th defendant has

purchased the said property. This was not disputed by either party. So, as

rightly held by the trial Court, item No.5 of the suit property is absolute

property of the 4th defendant. At this juncture, during pendency of this appeal,

the 4th defendant died on 26.09.2020. There is no dispute that the

4th defendant was unmarried and died as spinster. So, her siblings as parties on

record were treated as her LRs by this Court as per memo filed on 02.06.2026.

The parents of the 4th defendant had predeceased her. So, the available legal

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heirs are her brothers and sisters and so, they are equally entitled to her

property as per Section 15 of the Hindu Succession Act.

26. In the above facts and circumstances, after the demise of the

4th defendant, the shares of the 1st plaintiff and defendants 1 to 8, 10 and 11

are getting enlarged. The learned counsel for the defendants 2 to 5 and 7 & 8

has submitted that the enlargement can be considered at the time of final decree

proceedings. But the learned counsel was not be able to put forth an argument

as to what inconvenience would be caused to enlarge the shares in this

preliminary decree. The enlargement of shares would not prejudice the parties

in any way. Therefore, this Court holds that the 1st plaintiff (since deceased

and her legal heirs, plaintiffs 2 to 5) and the defendants 1 to 3, 5 to 8, 10 and 11

are entitled to 1/10 share in item Nos.1, 2, 4 and 5. In that respect, the finding

of the trial Court is to be modified. The points are answered accordingly.

Thus, the appeal succeeds in part.

27. In the result, this Appeal Suit is partly allowed. The judgment and

preliminary decree dated 26.02.2018 passed in O.S.No.229 of 2004 by the

learned V Additional District Judge, Madurai, though confirmed, the same is

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modified in respect of item Nos.1, 2, 4 and 5. The plaintiffs are entitled to

1/10 share in item Nos.1, 2, 4 and 5 of suit properties and the preliminary

decree passed by the trial Court in O.S.No.229 of 20024 is modified to that

effect. In other respects, the suit is dismissed. No costs. Consequently, the

connected Civil Miscellaneous Petition is closed.

01.10.2026

NCC : Yes / No

Internet : Yes / No

Index : Yes / No

VSD

To

1.The V Additional District Judge,

Madurai.

2.The Record Keeper,

Vernacular Records,

Madurai Bench of Madras High Court,

Madurai.

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P.VADAMALAI, J.

VSD

Pre-Delivery Judgment made in

A.S(MD)No.196 of 2018

and

C.M.P(MD)No.11578 of 2018

01.10.2026

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