A son cannot claim partition of his father’s separate property during his lifetime.

The appellant, N.V. Subramanian, was sued by his son, the first respondent, for partition and separate possession. The suit concerned property divided between the appellant and his father: one half was allotted to the appellant, while the grandfather retained the other half.

The grandfather’s registered Will dated 19 February 1974 (Ex.P3) bequeathed his retained half to the grandson; a later unregistered Will dated 10 April 1976 (Ex.D6) purported to revoke the earlier Will and bequeath that half to the appellant. The trial court granted the plaintiff a 1/4 share in the half allotted to the appellant and relief concerning the half covered by the Wills. The appellant appealed against the decree in O.S. No. 55 of 1987.

1. Whether Ex.P3, the first Will, had been proved in accordance with law

2. Whether Ex.P3 required proof despite the appellant’s admission of its execution

3. Whether Ex.D6, the later Will, had been proved in accordance with law

4. Whether the half share allotted to the appellant in the partition with his father was his separate property and could be partitioned during his lifetime at the suit of his son

The Court referred to Section 68 of the Indian Evidence Act, which requires proof of an attested document by calling an attesting witness where the law requires attestation.

It also referred to Section 64(c) of the Indian Succession Act, as stated in the judgment, in considering proof of the Will.

Registration alone does not establish due proof of a Will; where a later Will raises a competing claim, the earlier Will must also be proved.

The Court further applied the principle that property allotted to a person as his separate share in a partition of self-acquired property is that person’s separate property, which does not pass to his heirs until his death and is not divisible at his instance during his lifetime.

The partition deed was not produced, but the Court proceeded on the pleaded and undisputed position that the appellant had received one half share. It held that this share was his separate property and that the plaintiff could not claim a share in it during the appellant’s lifetime.

Although the appellant admitted execution of Ex.P3, the Court held that the Will still required proof because Ex.D6 asserted its cancellation and changed the intended devolution. The plaintiff’s witnesses did not establish Ex.P3’s execution in the legally required manner.

By contrast, the two attesting witnesses to Ex.D6 testified that they were present when the grandfather signed and that they signed the Will as witnesses; the Court accepted their evidence as sufficient proof.

It allowed the appeal, set aside the preliminary decree and dismissed O.S. No. 55 of 1987, with no order as to costs; the connected miscellaneous petitions were closed.