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2017 DIGILAW 2928 (MAD)

K. Nagarajan v. K. Subramanian

2017-08-30

T.RAVINDRAN

body2017
JUDGMENT : The first appeal is directed against the Judgment and Decree, dated 01.11.2000, passed in O.S.No.116 of 1992, on the file of the Principal Sub Court, Tenkasi. 2. For the sake of convenience, the parties are referred to as per the nomenclature in the suit. 3. The suit has been laid for partition and future mesne profits. 4. The case of the plaintiff in brief is as follows: 4.1. The first defendant is the father of the plaintiff and the second defendant. The fifth defendant is the wife of the first defendant and mother of the plaintiff and the second defendant. The deceased Arumuga Mudaliar, father of the first defendant, was engaged in textile business at Ambasamudram and the said business is his ancestral family business and for the purpose of expanding the said family business, the first defendant went and settled at Tenkasi and commenced the textile business and thus, the textile business commenced by the first defendant is the family business consisting of the first defendant and his sons, namely, the plaintiff and the second defendant and as such, the first defendant and the plaintiff and the second defendant come under the trading family and the first defendant had been carrying on the family business in the name of Kuthalinga Mudaliar and Sons and out of the income derived from the family business and as the trustee of the plaintiff and the second defendant and for the benefit of the family members, the first defendant had purchased the suit properties and accordingly, treated the suit properties as the joint family properties consisting of the first defendant and the plaintiff and the second defendant and thus, the plaintiff is entitled to 1/3rd share in the suit properties. Further, according to the plaintiff, the first defendant and the plaintiff and the second defendant together availed loan from the Life Insurance Corporation of India and put up a lodge construction on the third item of the suit properties and further from the income derived by way of running the lodge, also put up the first floor construction in the third item of the suit properties and while so, inasmuch as difference of opinion had arisen between the family members in the common enjoyment of the suit properties, the plaintiff claiming his 1/3rd share sent a legal notice, dated 28.06.1990 and to the same, no reply has been sent by the first defendant and on the other hand, the first defendant had created a sale deed fraudulently in respect of the first item of the suit properties in favour of the third defendant. However, the said sale is not true and valid and not binding upon the share to which the plaintiff is entitled to. Further, the fourth defendant had also purchased the second item of the suit property from the first defendant fraudulently and enjoying the same and the said sale transaction is also not true and valid and binding on the plaintiff's share. After the institution of the suit, the first defendant had died on 27.05.1998 and his share to the suit properties devolved upon his legal heirs, namely, the plaintiff, second defendant and the fifth defendant and as such, after his demise, the plaintiff would be entitled to 4/9th share in the suit properties and hence, the suit. 5. The case of the first defendant in brief is as follows: 5.1. The suit is not maintainable either in law or on facts and it is false to state that the family of the first defendant is a trading family consisting of the first defendant and his sons, namely, the plaintiff and the second defendant and it is false to state that the first defendant had settled at Tenkasi only for expanding the family textile business carried on by his deceased father Arumuga Mudaliar. On the other hand, it is stated by the first defendant that the business run by the deceased Arumuga Mudaliar and his sons resulted in huge loss and thereby the family got fragmented and separated and in order to eke out the livelihood, the first defendant settled at Tenkasi and worked at various places and out of the income derived from his hard labour at various places, he had started the textile business along with Sastha Mudaliar and thereafter, he had continued the business independently and therefore, according to the first defendant, the suit properties had been purchased only out of his self-earned income and the same had not been jointly enjoyed by him along with his sons as put forth by the plaintiff. It is false to state that the suit properties had been treated as the joint family properties. The plaintiff is not the partner in Kuthalinga Mudaliar and Sons, a partnership concern and the same had been carried on only by the first defendant and his son, namely, the second defendant and the same had also been stopped six years ago. The plaintiff has no right, title or interest over the third item of the suit properties and when the third item of the suit properties is purchased, the plaintiff was studying. The lodge described in the third item of the suit properties was put up by the first defendant out of the loan availed from the Life Insurance Corporation of India and other loans and the same had been enjoyed only as a separate property of the first defendant. The first item of the suit properties had been settled by the first defendant in favour of his wife and thereafter, his wife accepting the settlement, had again settled the same in his favour. The sale effected in favour of the third defendant is valid and the same cannot be questioned by the plaintiff. The plaintiff, after his marriage, had set up a separate residence and doing his business and he is not entitled to claim any share in the suit properties. The second item of the suit properties had been sold to the second defendant and it is false to state that no reply has been sent to the notice sent by the plaintiff, in fact, the first defendant has sent a suitable reply, dated 12.07.1990, containing true facts. The second item of the suit properties had been sold to the second defendant and it is false to state that no reply has been sent to the notice sent by the plaintiff, in fact, the first defendant has sent a suitable reply, dated 12.07.1990, containing true facts. The plaintiff has also falsely instituted another suit in O.S.No.37 of 1993. The plaintiff is not entitled to claim any share and future mesne profits as prayed for and hence, the suit is liable to be dismissed. 6. The case of the second defendant in brief is as follows: 6.1. The second defendant is adopting the written statement of the first defendant in all aspects and further, it is stated that the plaintiff is not entitled to claim any share in the suit properties. The first defendant has sold the first item of the suit properties to the third defendant on 21.01.1992 for a valid consideration and sold the second item of the suit properties to the second defendant for a valid consideration on 27.05.1990 and the said alienations could not be questioned by the plaintiff and hence, the suit laid by the plaintiff is liable to be dismissed. 7. The case of the fourth defendant in brief is as follows: 7.1. The suit is not maintainable either in law or on facts and the plaintiff is not entitled to claim any share, title or interest in the suit properties and it is false to state that the textile business done by the deceased Arumuga Mudaliar was the ancestral family business and that the said business was expanded by the plaintiff's father at Tenkasi. As regards the commencement of the business by the first defendant at Tenkasi, no details have been given by the plaintiff and it is false to state that the textile business engaged by the first defendant was the joint family business of the first defendant and his two sons, namely, the plaintiff and the second defendant. The second item of the suit properties had been purchased by the defendants 2 and 4 from the first defendant on 27.05.1992 for a valid consideration and the plaintiff is not entitled to claim any share in the suit properties and hence, the suit is liable to be dismissed. 8. The second item of the suit properties had been purchased by the defendants 2 and 4 from the first defendant on 27.05.1992 for a valid consideration and the plaintiff is not entitled to claim any share in the suit properties and hence, the suit is liable to be dismissed. 8. The case of the second defendant as put forth in the additional written statement and adopted by the fifth defendant in brief is as follows: 8.1. The first defendant during his lifetime in a sound and fit state of mind had executed a Will, dated 11.02.1998, in respect of the third item of the suit properties and the said Will had been registered and after the demise of the first defendant, the second defendant alone is entitled to the third item of the suit properties and therefore, the third item of the suit properties is now in possession and enjoyment of the second defendant as the full owner thereof and the second defendant is ready to carry on his obligations as provided under the Will and it is false to state that the defendants 2 and 5 had accepted the agreement projected by the plaintiff and on the other hand, they are not aware of the contents of the said agreement projected by the plaintiff and hence, the suit is liable to be dismissed. 9. On the basis of the pleadings set out above, the following issues were framed by the Trial Court for determination: i. Whether the plaintiff is entitled to claim share in the suit properties as prayed for? ii. Whether all items of the suit properties are the self-acquired properties of the first defendant? iii. Whether the plaintiff is entitled to question the sale effected by the first defendant in favour of the defendants 2 and 3? and iv. To what relief, the plaintiff is entitled to? 10. The following additional issues were framed for determination: i. Whether the fourth defendant has perfected her title to the suit property? and ii. Whether the Court fee paid by the plaintiff is correct? 11. In support of the plaintiff's case, P.W.1 was examined and Exs.A1 to A20 were marked and on the side of the defendants', D.Ws.1 and 2 were examined and Exs.B1 to B42 were marked. 12. and ii. Whether the Court fee paid by the plaintiff is correct? 11. In support of the plaintiff's case, P.W.1 was examined and Exs.A1 to A20 were marked and on the side of the defendants', D.Ws.1 and 2 were examined and Exs.B1 to B42 were marked. 12. On a consideration of the oral and documentary evidence adduced by the respective parties, the Court below was pleased to dismiss the suit laid by the plaintiff. Aggrieved over the same, the present appeal has been preferred. 13. The following points arise for consideration in this appeal: i. Whether the suit properties are the joint family properties consisting of the deceased first defendant and his sons, namely, the plaintiff and the second defendant as put forth in the plaint? ii. Whether the suit properties are the self-acquired properties of the deceased first defendant as put forth by the defendants? iii. Whether the sale transactions effected by the deceased first defendant in respect of the Item Nos.1 and 2 of the suit properties are true, valid and binding on the plaintiff? iv. Whether the Will, dated 11.02.1998, executed by the deceased first defendant is true, valid and binding on the plaintiff? v. Whether the plaintiff is entitled to seek for and obtain the relief of partition and separate possession of the suit properties as claimed? vi. Whether the plaintiff is entitled to seek for and obtain the future mesne profits as claimed? and vii. To what relief the plaintiff is entitled to? POINT NOS.1 TO III: 14. The plaintiff and the second defendant are the sons of the deceased first defendant. Pending suit, the first defendant had died. The fourth defendant is the wife of the second defendant. The fifth defendant is the mother of the plaintiff and the second defendant and the wife of the deceased first defendant. As regards the relationship above stated between the parties, the same is not in issue. Pending suit, the first defendant had died. The fourth defendant is the wife of the second defendant. The fifth defendant is the mother of the plaintiff and the second defendant and the wife of the deceased first defendant. As regards the relationship above stated between the parties, the same is not in issue. Claiming that the suit properties are the joint family properties of the first defendant and the plaintiff and the second defendant on the footing that the first defendant had been running the textile business as the ancestral family textile business right from the days of his father the deceased Arumuga Mudaliar at Ambasamudram and thereafter, the first defendant had settled at Tenkasi and continued the ancestral family textile business therein and thus, according to the plaintiff, the textile business run by his father is the joint family business consisting of the first defendant, the plaintiff and the second defendant and further, according to the plaintiff, the above mentioned textile business was run by his father in the name of Kuthalinga Mudaliar and Sons and out of the income derived from the said business, it is the case of the plaintiff that the properties involved in the suit had been acquired by the first defendant in his name and also as the trustee of the plaintiff and the second plaintiff and the suit properties as such had been treated and enjoyed as the joint family properties consisting of the first defendant, the plaintiff and the second defendant and further, according to the plaintiff, the first defendant along with the plaintiff and the second plaintiff availed loan from the Life Insurance Corporation of India and put up the lodge construction on the third item of the suit properties and thus, in all according to the plaintiff, after the demise of his father, he is entitled to 4/9th share in the suit properties, hence the plaintiff laid the suit claiming partition of his share. 15. The first defendant remained alive at the time of institution of the suit and also filed his written statement, wherein he has stoutly disputed the case of the plaintiff. 15. The first defendant remained alive at the time of institution of the suit and also filed his written statement, wherein he has stoutly disputed the case of the plaintiff. According to the first defendant and also the case of the other defendants, it is false to state that the textile business run by the first defendant is the continuation of the business run by the deceased Arumuga Mudaliar and on the other hand, according to the defendants, the first defendant, out of his own acquisitions, had started the textile business at Tenkasi and thereby developed the business and subsequently he had been running the business in the name of Kuthalinga Mudaliar and Sons along with the second defendant only and the plaintiff has no connection whatsoever in the said textile business and it is false to state that the suit properties had been acquired by the first defendant out of the income derived from the ancestral family business and on the other hand, according to the defendants, the suit properties had been acquired by the first defendant out of his own acquisitions and funds and thus, the suit properties are the self-acquired properties of the first defendant and the plaintiff cannot lay any claim or interest or share in the suit properties and the first defendant as the absolute owner of the suit properties had been dealing with the suit properties and accordingly, alienated the first item of the suit properties to the third defendant by way of the sale deed, dated 15.01.1992 marked as Ex.A6 and the second item of the suit properties in favour of the defendants 2 and 4 on 27.05.1992 marked as Ex.B38 and the plaintiff is not entitled to question the same and only the defendants 2 to 4 are in enjoyment of the properties purchased by them as above mentioned and hence, the plaintiff is not entitled to lay any claim or interest or share in the suit properties and hence, the suit is liable to be dismissed. After the demise of the first defendant, the defendants have also taken a plea that in respect of the third item of the suit properties, the first defendant in a sound and fit state of mind had bequeathed the same in favour of the second defendant, by way of the Will, dated 11.02.1998 marked as Ex.B40 and thus, the third item of the suit properties also belonged to the second defendant and the plaintiff is not entitled to lay any claim or interest or share in respect of the same and hence, on the above ground also, the suit is liable to be dismissed. 16. It is the specific case of the plaintiff that his grandfather, namely, the deceased Arumuga Mudaliar and his sons were running a textile business. However, as seen from the evidence placed in the matter, it is found that the textile business run by the plaintiff's grandfather along with his sons had come to an end during 1954 itself and it is further found that following the estrangement between the first defendant and his brother with their father, namely, the deceased Arumuga Mudaliar, it is seen that they had relinquished / released all the rights in respect of the properties of the family and had come out of the family by executing a release deed, which had come to be marked as Ex.A1. A perusal of Ex.A1 would go to show that the first defendant along with his brother had in complete made an exit from the family of the deceased Arumuga Mudaliar and in such view of the matter, it is found that a conjoint reading of the above facts would only go to show that after Ex.A1, there is no joint family business as such, particularly, run by the first defendant along with his father and pursuant to Ex.A1, the first defendant had severed all links and connection with the family of the deceased Arumuga Mudaliar and came to Tenkasi and settled there itself. This has been clearly admitted by the plaintiff, who has been examined as P.W.1. It is further admitted by P.W.1 that his father did not own any property at Ambasamudram and Tenkasi and he is not aware as to whether his father was employed at various places in Tenkasi as pleaded in the written statement of his father. With reference to the same, the plaintiff has only pleaded ignorance. It is further admitted by P.W.1 that his father did not own any property at Ambasamudram and Tenkasi and he is not aware as to whether his father was employed at various places in Tenkasi as pleaded in the written statement of his father. With reference to the same, the plaintiff has only pleaded ignorance. It is, therefore, found that at the time when the deceased first defendant had severed from his father the deceased Arumuga Mudaliar and came and settled at Tenkasi, he was not in possession of any property as such and according to the case of the defendants, the first defendant, after coming into Tenkasi, had been working in various places and eking out his livelihood and by stint of hard labour and good work, according to the defendants, he was able to acquire funds and accordingly, made the acquisition of the suit properties out of his self-acquisitions. In this connection, P.W.1 has clearly admitted that his father was not owning any ancestral properties, which had yielded income. Therefore, it is found that the deceased first defendant was not owning any ancestral properties, which had yielded income. In such view of the matter, any business that had been run by the father i.e., the deceased first defendant at Tenkasi would have been done, as rightly argued by the learned counsel for the second defendant, only out of his hard earned money and therefore, the contention of the plaintiff that the business run by the deceased Arumuga Mudaliar at Tenkasi was a continuation of the ancestral family textile business run by his grandfather, the deceased Arumuga Mudaliar, as such cannot be countenanced. It is found that subsequently, the deceased first defendant was able to mobilise funds and run the business in an elaborate manner and accordingly, it is found that he had started the textile partnership business along with his son, the second defendant, in the name of Kuthalinga Mudaliar and Sons and with reference to the same, the partnership transaction, dated 17.08.1973 has come to be marked as Ex.B1. The plaintiff had also admitted that the partnership business was commenced in 1994 and at that point of time, he was only a minor. However, it is found that the partnership business had been commenced by the deceased first defendant only adding the second defendant as a partner and not the plaintiff. The plaintiff had also admitted that the partnership business was commenced in 1994 and at that point of time, he was only a minor. However, it is found that the partnership business had been commenced by the deceased first defendant only adding the second defendant as a partner and not the plaintiff. Even though the plaintiff was a minor at that point of time, as per law, it is also admitted by the plaintiff himself that the minor could also be inducted as a partner in the business. But, as rightly argued by the learned counsel for the second defendant, inasmuch as the business as above pointed out had been started by the deceased first defendant out of his self- acquisitions and funds and the same being his own business as such had decided to continue the business in the name of Kuthalinga Mudaliar and Sons, however, restricting the entry only for the second defendant as its partner, excluding the plaintiff from the business. Therefore, it could be seen that the business run by the first defendant in the name of Kuthalinga Mudaliar and Sons could only be termed as his self-business and not the joint family business of the first defendant along with his sons, particularly, the plaintiff and the second defendant. In this connection, the plaintiff has also admitted during the course of his cross-examination that only his father and his brother, the second defendant, were the partners in the textile business and prior to the same, his father was running the business and in the partnership deed marked as Ex.B1, there is a specific reference that the said business was run by his father till 1973 as his self-business and thereafter, the business had been converted into a partnership concern with the investment of Rs.5,000/- by the father and Rs.5,000/- by the second defendant. If really, as pleaded by the plaintiff, the business run by the deceased first defendant' was a continuation of the business of the deceased Arumuga Mudaliar and the same had been treated as the joint family property by the first defendant, certainly, there would have been a reference about the same in the partnership deed marked as Ex.B1. If really, as pleaded by the plaintiff, the business run by the deceased first defendant' was a continuation of the business of the deceased Arumuga Mudaliar and the same had been treated as the joint family property by the first defendant, certainly, there would have been a reference about the same in the partnership deed marked as Ex.B1. However, no reference as to the same being the joint family business of the first defendant along with his sons is noted in Ex.B1 and as seen above, the first defendant has not chosen to include the plaintiff as the partner in the business. Therefore, it has to be held that the plaintiff has miserably failed to establish that the business run by his father is the joint family business and hence, it has to be held that the said business is the separate business of the deceased first defendant. 17. It has been admitted by the plaintiff, during the course of his evidence, that it is his father, who had acquired the suit properties and particularly, it is stated that Item Nos.I and II had been acquired as a single unit by his father during 1978 and thereafter, constructed two houses with Door Nos.37 and 38 and he is not aware as to how the consideration had been paid by his father for the said sale transaction and at the time of purchase of the same, he was aged 17 years and he has further admitted that his father settled the Door No.38 in favour of his mother / fifth defendant and subsequently, she had again settled the same in favour of his father and at that point of time, they were all in cordial terms and further he has also admitted that his father had alienated the Door No.38 in favour of the third defendant during 1993 and also alienated the Door No.37 in favour of his brother, namely, the second defendant and his wife, namely, the fourth defendant. The above facts would only go to show that inasmuch as the above said acquisitions of the suit properties had been made by the first defendant out of his self- acquisitions and funds, it is found that he had been dealing with the property as desired by him and accordingly, at one point of time, settled Door No.38 in favour of his wife and again, it is found that she had settled the said property in favour of the first defendant and thereafter, the Door No.38 had been alienated to the third defendant and the Door No.37 had been alienated in favour of the defendants 2 and 4. The plaintiff has not pleaded that he is not aware of the above said transactions. If really the suit properties, at any point of time, had been treated and enjoyed as the joint family properties and the plaintiff had any right over the same, as rightly argued, the plaintiff would have questioned the above said transactions made by his father with reference to the suit properties. However, till the issuance of the notice, it is found that the plaintiff has not made any challenge to the transactions effected by his father in respect of the suit properties as above described. 18. From the sale deeds marked as Exs.A2, B3 and B4, it is found that the suit properties had been acquired by the first defendant out of his self- acquisitions and the recitals contained therein also only state that it is only the first defendant, who had parted with the sale consideration and acquired absolute ownership of the properties therein mentioned. Similarly, in the sale transaction effected by the first defendant in favour of the third defendant marked as Ex.A6 and in favour of the defendants 2 and 4 marked as Ex.B38, it has been clearly averred by the first defendant that all the properties conveyed thereunder are only his self-acquisitions and that he is the absolute owner of the said properties. In such view of the matter, when there is no material at all placed on the part of the plaintiff that the first defendant was owning any ancestral nucleus or income yielding ancestral nucleus or commenced the textile business out of the ancestral income or acquired the suit properties out of the assistance of any ancestral family properties, it is found that the case of the plaintiff that the suit properties had been acquired by the deceased first defendant out of the income of the joint family textile business as such cannot be believed and accepted. 19. The further case of the plaintiff is that his father, namely, the first defendant had obtained loan from the Life Insurance Corporation of India and put up a lodge construction in the third item of the suit properties and therefore, according to the plaintiff, the third item of the suit properties is also the joint family property. However, it is found that the loan incurred by the deceased first defendant from the Life Insurance Corporation of India was made by him in his individual capacity as well as in the capacity of the business run by him in the name of Kuthalinga Mudaliar and Sons and the documents marked as Exs.B7 to B37 would amply establish that the demand notice for the loan had been raised only in the name of the second defendant as the partner of Kuthalinga Mudaliar and Sons and not in the name of the plaintiff. That apart, it is also found that the loan transaction marked as Ex.A3 and the connected lease transaction marked as Ex.A10 also would not in any manner advance the case of the plaintiff to hold that the suit properties are the joint family properties as pleaded by him. No doubt, there is a reference in Ex.A3 that the deceased first defendant had described himself as the Manager of the joint family. Ex.A3 is the memorandum of title deeds made by the first defendant along with his sons, namely, the plaintiff and the second defendant. No doubt, there is a reference in Ex.A3 that the deceased first defendant had described himself as the Manager of the joint family. Ex.A3 is the memorandum of title deeds made by the first defendant along with his sons, namely, the plaintiff and the second defendant. As rightly argued by the learned counsel for the second defendant, inasmuch as the Life Insurance Corporation of India had made a request to include all the members of the family for the loan transaction, it is found that left with no other option, the first defendant had joined his sons in the obtainment of the loan and accordingly, described himself as the family manager. By the above isolated incident, it cannot be held that the business run by the deceased first defendant or the acquisitions made by the first defendant are the joint family business or the joint family properties. Similarly, in the document marked as Ex.A10, the plaintiff has taken a plea that the first defendant had admitted the right of the plaintiff in the suit properties. The contention put forth by the defendants that inasmuch the situation then warranted the inclusion of the plaintiff also as a party to the lease transaction, the plaintiff had been added as a party and by the same, nothing can be added, particularly, it cannot be construed that the business run by the first defendant or the properties acquired by the first defendant are the joint family business or the joint family properties as put forth by the plaintiff. The plaintiff seems to have placed more reliance upon Exs.A3 and A10 in support of his case. However, the said documents of their own and when the facts and circumstances of the case are otherwise, as seen from the above discussions, it is found that the plaintiff cannot lay any claim or interest or share in the suit properties on the above said documents alone. As rightly argued, it has not been pleaded or established by the plaintiff that he was in any way involved in the discharge of the loan obtained by his father for the construction of the lodge in the third item of the suit properties. On the other hand, it is found that it is only the second defendant, who had been discharging the loan as seen from Exs.B7 to B37. 20. On the other hand, it is found that it is only the second defendant, who had been discharging the loan as seen from Exs.B7 to B37. 20. In such view of the matter, it is found that the contentions of the learned counsel for the plaintiff that the second defendant, in his evidence, has admitted the status of the first defendant as the Kartha in the loan transaction etc., would not in any manner advance the case of the plaintiff or undermine the case of the defendants and as adverted to above, inasmuch as the situation then required the taking of the loan transaction as the head of the family and joining of the plaintiff as a party to the loan transaction, it is found that the above said documents had come into existence and accordingly, D.W.1/second defendant has tendered evidence on the above lines. In such circumstances, the above alleged admission of D.W.1 cannot be projected as if he has admitted that the suit properties are the joint family properties and hence, the plaintiff cannot be allowed to take advantage of the above said admissions said to have been made by the second defendant. On the other hand, a reading of the evidence of D.W.1 in toto would only go to show that he has remained steadfast in the case that the suit properties are only the self-acquired properties of the deceased first defendant. 21. In the light of the above discussions, I hold that the plaintiff has failed to establish that the suit properties are the joint family properties of the first defendant and the plaintiff and the second defendant and I further hold that the suit properties are the self-acquired properties of the first defendant and I further hold that the sale transactions effected by the deceased first defendant in respect of the Item Nos.1 and 2 of the suit properties are true, valid and binding on the plaintiff. Accordingly, Point Nos.I to III are answered against the plaintiff and in favour of the defendants. POINT NO.IV: 22. Item Nos.1 and 2 of the suit properties had already been alienated by the deceased first defendant. It has been held that the sale effected by the first defendant in respect of the above said suit properties are true, valid and binding on the plaintiff. POINT NO.IV: 22. Item Nos.1 and 2 of the suit properties had already been alienated by the deceased first defendant. It has been held that the sale effected by the first defendant in respect of the above said suit properties are true, valid and binding on the plaintiff. As regards the third item of the suit properties, it is found and held that the same is also the self-acquired property of the deceased first defendant. Pending suit, the first defendant had died. Now, it is the case of the defendants that during his lifetime, the first defendant in a sound and fit state of mind had executed a Will, dated 11.02.1998, bequeathing the third item of the suit properties in favour of the second defendant and after his demise, the Will had come into force and thus, according to them, it is only the second defendant, who is having the right in respect of the third item of the suit properties. No doubt, the plaintiff has disputed the validity of the said Will. To establish the authenticity of the Will as required by law, it is found that the defendants have examined one of the attestors of the said Will, namely, Murugan as D.W.2. No doubt, the plaintiff has disputed the validity of the said Will. To establish the authenticity of the Will as required by law, it is found that the defendants have examined one of the attestors of the said Will, namely, Murugan as D.W.2. D.W.2, in his evidence, has clearly deposed that he is well acquainted with the deceased first defendant and his assistance has been solicited for the execution of the Will by the deceased first defendant and accordingly, in his presence, the contents of the Will were read out and after the same, the first defendant had subscribed his signature to the Will and the same had been witnessed by him and other witnesses and accordingly, when he and other witnesses had attested the Will, the same had been witnessed by the first defendant, testator of the Will and at the time of the execution of the Will, the deceased first defendant was in a sound and fit state of mind and the Will was read out to him by D.W.2 and thus, from the above evidence of D.W.2, it has been clearly established by the defendants that the Will, dated 11.02.1998, marked as Ex.B40 is the last testament of the deceased first defendant and accordingly, he had bequeathed the third item of the suit properties under the same in favour of the second defendant and also cast various obligations on the part of the second defendant to discharge the other terms of the Will, which the second defendant had agreed to undertake. It is found that under the said Will, some benefits had been conferred on the plaintiff. Despite the cross-examination of D.W.2, nothing serious has been pointed out by the plaintiff to discredit and dislodge his evidence in any manner. It is found that the evidence of D.W.2 satisfy all the requirements of law completely and through the evidence of D.W.2, it is seen that the defendants have clearly established the genuineness and authenticity of the Will marked as Ex.B40 executed by the deceased first defendant. I, therefore, hold that the Will, dated 11.02.1998, executed by the deceased first defendant is true, valid and binding on the plaintiff. Accordingly, Point No.IV is answered against the plaintiff and in favour of the defendants. POINT NOS.V AND VI: 23. I, therefore, hold that the Will, dated 11.02.1998, executed by the deceased first defendant is true, valid and binding on the plaintiff. Accordingly, Point No.IV is answered against the plaintiff and in favour of the defendants. POINT NOS.V AND VI: 23. In the light of the reasons and conclusions given to Point Nos.I to IV, I hold that as rightly determined by the Court below, the plaintiff is not entitled to obtain the reliefs of partition and separate possession of any share in the suit property as claimed in the plaint. I further hold that the plaintiff is not entitled to claim any future mesne profits in respect of the suit properties and accordingly, Point Nos.V and VI are answered in favour of the defendants and as against the plaintiff. POINT NO.VII: 24. In conclusion, the Judgment and Decree, dated 01.11.2000, passed in O.S.No.116 of 1992, on the file of the Principal Sub Court, Tenkasi, are confirmed and the first appeal is dismissed with costs. Consequently, connected civil miscellaneous petition is closed.