PALANIAMMAL Vs. KARUPPUSAMY SOUNDER AND OTHERS

JUDGEMENT

(1.) In a fight between the sister and brothers in respect of succession to the property of the father, two suits came to be filed, the first one being O.S.No. 146 of 2005 on the file of the learned District Munsif, Gobichettipalayam filed by the sister on 27.04.2001 and the other suit being O.S.No. 488 of 2004 on the file of the learned District Munsif, Gobichettipalayam filed on 30.04.2001 by the brothers for declaration of title claimed by the rival parties to one and the same properties.

(2.) The claim of the sister is based on a Will dated 07.12.1976; whereas the claim of the brothers is based on a Will dated 22.03.2000, both claimed to be executed by Avinashi Gounder, the father of the parties. The suit filed by the petitioner is resisted by the respondents contending that the Will dated 07.12.1976 propounded by the petitioner is a forged one. A similar contention has been raised by the petitioner in the suit filed by the respondents (brothers). Since both the suits have been filed in respect of the estate of the deceased Avinashi Gounder based on the above said Wills, each claiming the respective Will propounded by them to be the last Will and testament of Avinashi sounder, the respondents filed a petition before the trial Court in I.A.No. 61 of 2012 in O.S.No. 488 of 2004 for joint trial of both the suits and for recording common evidence for both the suits in O.S.No. 146 of 2005 which was admittedly filed earlier in point of time. Besides seeking joint trial and recording of common evidence for both the cases in O.S.No. 146 of 2005, the respondents had also prayed therein that the revision petitioner should be called upon to lead evidence in proof of the Will dated 07.12.1976 propounded by her.

(3.) It was contended by the revision petitioner that since the respondents were relying on the Will which was executed later in point of time as the last Will and Testament of the testator Avinashi Gounder, the necessity to prove the Will propounded by her would arise only in case of the respondents' failure to prove the Will dated 22.03.2010 and that hence, the respondents should be directed to lead evidence before ever the petitioner shall be called upon to lead evidence. The learned trial Judge, after hearing both sides, sustained the contentions of the respondents herein and rejected the contention of the revision petitioner. Accordingly, by an order dated 25.01.2012, joint trial of O.S.No. 146 of 2005 and O.S.No. 488 of 2004 was ordered with a direction to record common evidence for both the suits in O.S.No. 146 of 2005, with a further direction that the revision petitioner, namely, the plaintiff in O.S.No. 146 of 2005 should lead evidence at the first instance in proof of the Will propounded by her.