(Prayer: The First Appeal filed under Section 96 of C.P.C, to set aside the judgment and decree dated 22.08.2019 made in O.S.No.31 of 2016 on the file of the Additional District Judge, Paramakudi.)

R. Vijayakumar, J.

1. The defendants in O.S.No.31 of 2016 on the file of the Additional District Court, Paramakudi have preferred the present first appeal challenging the Preliminary decree for partition.

(A).Factual Matrix:

2. The plaintiff has contended that the suit schedule properties are the ancestral properties of Pandi Nadar and he had died interstate leaving behind his two sons namely Ponselvam and Saravanan and two daughters namely Ponvandu and Janatha. The plaintiff is the wife of the deceased Saravanan. According to the plaintiff, her husband had passed away on 20.05.2015 and the defendants are attempting to alienate the property treating it as their exclusive property. Hence the suit for partition.

3. The defendants had filed a written statement admitting the genealogy and ancestral character of the property in the hands of Pandi Nadar. However, the defendants contended that the properties located in Therkku Athankarai and Madathumedu which belongs to 10 families including Pandi Nadar has not been included. Therefore, the suit is bad for partial partition. According to the defendants, the other 9 family members have not been impleaded. Therefore, the suit is bad for non-joinder of necessary parties.

4. The defendants have further contended that the plaintiff's husband has executed a Will on 12.01.2015 bequeathing his share in favour of his brother Ponselvam. Therefore, the plaintiff does not have any right over the suit schedule properties. It was further contended that they have spent huge amount for the medical treatment of Saravanan by pledging their jewels. The jewels that were given by the plaintiff to meet out the medical expenses have been handed over to her on 31.05.2016 through Panchayatdars. Hence, they prayed for dismissal of the suit.

5. On the side of the plaintiff, the plaintiff had examined herself as PW1 and marked Exs.A1 to A12 documents. On the side of the defendants, the second defendant has examined herself as DW1 and other witnesses were examined as DW1 to DW4. The defendants have marked Exs.B1 to B3 documents.

6. The trial Court after considering the submissions made on either side, had arrived at a finding that the suit is not bad for partial partition and therefore, there is no necessity to implead the other 9 families who are relatives of Pandi Nadar. The trial Court further found that Ex.B1 Will dated 12.01.2015 has not been proved in accordance with Section 63 of Indian Succession Act, 1925.

7. Based upon the above said findings, the trial Court granted a preliminary decree for partition of 1/4th share in favour of the plaintiff. Challenging the said judgment and decree, the present first appeal has been preferred by the defendants.

(B).Submissions of the learned counsel appearing on either side:

8. The learned Senior Counsel appearing for the appellants relied upon the cross examination of DW1 and contended that the plaintiff has specifically admitted during her cross examination that certain properties belonging to her father-in-law are yet to be partitioned and they have not been included as suit schedule properties. Therefore, in view of the said categorical admission, the trial Court ought to have dismissed the suit for partial partition. When the other family members who are the co-owners of the other properties have not been impleaded, the suit is bad for non-joinder of necessary parties also.

9. The learned Senior Counsel, relying upon the deposition of DW4 who is the attestor of Ex.B1 Will, submitted that the attestor has categorically deposed about the execution of the Will. Therefore, there cannot be any doubt over the genuineness or validity of the Will. The trial Court had unnecessarily observed that there are suspicious circumstances surrounding the Will. When there is no pleadings with regard to the suspicious circumstances surrounding the Will, the trial Court ought not to have made such a findings.

10. The learned Senior Counsel appearing for the appellants had relied upon a decision of the Hon'ble Supreme Court reported in 2022 SCC Online SC 240 ( B.R.Patil Vs. Tulsa Y.Sawkar and others) to contend that the suit is bad for partial partition.

11. Per contra, the learned counsel appearing for the respondent submitted that DW4, the attestor of the Will has not spoken about the fact that he has seen the testator signing the Ex.B1 Will. Therefore, the trial Court has rightly arrived at a finding that the defendants have not proved the Will in accordance with Section 63 of Indian Evidence Act. The properties that were not included in the suit were yet to be divided among Pandi Nadar and his other relatives. However, the suit schedule properties are the ancestral properties in the hands of Pandi Nadar in which his other relatives do not have any right. Therefore, the non inclusion of those properties or non impleading of the relatives of Pandi Nadar who are not making a claim over the suit schedule properties, would not render the suit bad for partial partition. Hence, he prayed for dismissal of the appeal.

12. We have considered the submissions made on either side and perused the material records.

13. Points for determination are as follows:

                     (i).Whether the suit is bad for partial partition?

                     (ii).Whether the defendants have proved Ex.B1 Will as per Section 63 of Indian Succession Act?

(C).Discussion:

14. The learned Senior Counsel appearing for the appellants had made strong reliance upon Exs.B2 and B3 Patta to impress upon the Court that the other properties which are standing in the name of Pandi Nadar have not been included and therefore, the suit is bad for partial partition. A perusal of Exs.B2 and B3 reveals that the properties in Patta Nos.772 and 1781 of Kadaladi Taluk in Survey No.315/1C and 116/1 belong to 10 persons. The name of Pandi Nadar is also found as one among the sharers. Therefore, it is clear that those properties are joint family properties of 10 families. Admittedly, these two properties have not been included in the suit.

15. It is not the case of the defendants that in the suit schedule 6 properties, apart from the parties to the present suit, others have also got a share. There is no dispute whatsoever that in these 6 items, only the plaintiff and the defendants have got share. As far as the items covered under Exs.B2 and B3 are concerned, they are yet to be partitioned among Pandi Nadar and his co-owners. The share of Pandi Nadar in those properties is yet to get crystallised. In such circumstances, the non inclusion of those properties would not in any way affect the adjustment of the co-ownership rights of the legal heirs of Pandi Nadar in the suit schedule properties.

16. As and when the other co-owners of Pandi Nadar choose to seek for partition, the parties to the present suit can claim their respective shares. The wife of the deceased son of Pandi Nadar cannot be made to wait for an indefinite period till the members of the larger co-parcenary (who do not make any claim over the suit schedule properties) choose to partition their properties. Therefore, the suit is not bad for partial partition. As a consequence, the non-impleading of other relatives of Pandi Nadar would not render the suit as bad for non-joinder of necessary parties.

17. The defendants have further contended that the deceased Saravanan has executed a Will under Ex.B1 in favour of the first defendant. A perusal of Ex.B1 reveals that it has been attested by one Muthuselvam and Backiaraj. One Manikandan had typed the Will. One of the attestors namely Backiaraj has been examined as DW4 and scribe has been examined as DW3. During the chief examination, DW4 has not stated that he had seen Saravanan signing the Will. DW4 has also not deposed that he had attested the Will in the presence of Saravanan. Therefore, it is clear that the Will has not been proved in accordance with Section 63(c) of Indian Succession Act, 1925.

(D).Conclusion:

18. When the character of the property and the genealogy are admitted and the intervening document namely Ex.B1 has not been proved in accordance with law, the trial Court has rightly granted a preliminary decree for 1/4th share in favour of the plaintiff. We do not find any reason to interfere in the judgment and decree of the trial Court. There are no merits in the first appeal. The first appeal stands dismissed. No costs. Consequently, connected miscellaneous petition is closed.