Second appeal by the defendant in a partition suit. The court held the registered Will was not proved, as the attestor admitted he did not see the executants sign and the deposing Sub Registrar took office only in 2014. The plaintiff's failure to plead his father was alive meant no positive proof of death was needed. Appeal dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
S.A.No.17 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 12.03.2026
CORAM
THE HONOURABLE MR.JUSTICE S.SOUNTHAR
S.A.No.17 of 2021 and C.M.P.No.323 of 2021
K.Jothivelu ... Appellant
vs.
M.Balachandran ... Respondent
PRAYER: Second Appeal is filed under Section 100 of the Code of Civil Procedure, to set aside the Judgment and Decree of the learned Subordinate Judge, Arakkonam dated 31.01.2020 made in A.S.No.40 of 2017 reversing the judgment and decree of the learned District Munsif, Arakkonam dated 29.06.2017 made in O.S.No.125 of 2007 by allowing the second appeal.
For Appellant : Mr .Jeremiah Gregory John
For Respondent :Mr.K.Myilsamy
J U D G M E N T
The unsuccessful defendant in the suit is the appellant.
share in the suit property. The suit was dismissed by the trial Court and the 1/10
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First Appellate Court decreed the suit as prayed for by the plaintiff. Aggrieved by the same, the defendant has come before this Court.
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long back and sisters of the defendant already gave up their rights. Therefore, according to the plaintiff, he and the defendant are entitled to half share each in the suit property. Hence the suit was laid for partition of half
share. He also sought for injunction restraining the defendant from alienating the suit property.
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came to the conclusion that the Will relied on by the defendant was true. The trial Court also found that the plaintiff could not maintain a suit for partition during the lifetime of his father and hence dismissed the suit. Aggrieved by the same, the plaintiff has preferred A.S.No.40 of 2017 on the file of Subordinate Judge, Arakonam. The First Appellate Court reversed the above findings of the trial Court and decreed the suit as prayed for. Aggrieved by the same, the defendant has come before this Court.
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d) Whether the Lower Appellate Court had correctly applied the provisions of Section 68 of Indian Succession Act while holding that Ex.B1 Will was not proved?
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He also has not stated anything regarding the attestation of the Will by the other attestor. In such circumstances, the evidence of DW.2 is not at all useful to prove due execution of the Will in terms of Section 68 of Evidence Act r/w Section 63 of Indian Succession Act.
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and ‘d’ framed at the time of admission are answered against the appellant.
Accordingly, the Second Appeal stands dismissed. Consequently, the connected civil miscellaneous petition is closed.
12.03.2026
Index : Yes / No Speaking order : Yes / No Neutral Citation : Yes / No ub
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To
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S.SOUNTHAR, J.
ub
S.A.No.17 of 2021
12.03.2026
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2 issues framed by the court
Whether the defendant proved due execution and attestation of the Will (Ex.B1) through the evidence of the attestor and Sub Registrar under Section 68 Evidence Act r/w Section 63 Indian Succession Act
Whether the plaintiff's father was alive on the date of presentation of the plaint, barring a suit for partition by the son?
2 provisions across 2 enactments
K.Jothivelu
M.Balachandran
S.Sounthar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
