One should always remain careful in filing applications etc in time.

This revision is preferred against the order made in I.A.No.858/2002 in O.S.No.710/1996, dated 29.7.2003, on the file of the Addl. District Munsif, Namakkal, allowing the petition under section 5 of the Limitation Act on payment of cost of Rs.1000/- and condoning the delay in filing the petition to set aside abatement and the application to implead Legal Representatives of deceased Kaliammal. The Defendants are the Revision Petitioners.

2. Plaintiffs filed the suit for partition of the suit property and to allot 3/5th share to the Plaintiffs. The Plaintiffs and the Defendants are related as under:-

Marappa Gounder died on 2.7.1987

= Kaliammal (P-1) died on 28.11.2000

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Periasamy-D-1 Allimuthu Nallammal Perumayee-D-2

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Minor Selvi Gurumurthy

D-3 Proposed Legal Representative

3. Case of the Plaintiff is that Marappa Gounder died intestate on 2.7.1987. The Plaintiffs and the Defendants 1 and 2 are the Legal Representatives of the deceased Marappa Gounder. The second Defendant is only entitled to a share in the family properties. While so, the second Defendant had executed a Settlement Deed in favour of his minor daughter – D-3, on 18.3.1996. The second Defendant has no right to execute the Settlement Deed regarding the undivided properties. Even during the life time of Marappa Gounder, he has filed O.S.No.577/1998 against the first Defendant for declaration of his title to his self acquired properties. After the death of Marappa Gounder, Plaintiffs and Defendants 1 and 2 are in joint possession of the suit properties. Since the first Defendant is not cooperating for amicable settlement, the Plaintiffs have filed the suit for partition and separate possession to divide the suit property into five equal shares and to allot three shares to them.

4. D-3 has filed the Written Statement contending that the suit property and other properties were purchased from out of the income of the joint family. According to D-3, D-3 and her mother had been chased away from the family house and that they have taken shelter in their maternal grand mother's house. D-3 and her mother and D-1 are entitled to 2/15th share each.

5.I.A.No.858/2002:-

During the pendency of the suit, the first Plaintiff – Kaliammal died on 28.11.2000. The application to implead the Legal Representatives ought to have been filed within ninety days. But there was delay in filing the application to implead the Legal Representatives of deceased first Plaintiff – Kaliammal. This application was filed to condone the delay in filing the application to implead the Legal Representatives of deceased Kaliammal and also to set aside the abatement. The third Respondent Gurumurthy claimed that his paternal grandmother/first Plaintiff Kaliammal had executed the Will in his favour, bequeathing her share in the suit property. According to the third Respondent, the share of Kaliammal devolved on him and that he has to be impleaded as a party and third Respondent filed this application I.A.No.858/2002 to condone the delay of 96 days in filing the application.

6. The application was resisted denying the execution of the Will. The Defendants allege that the Petitioner Gurumurthy is not the Legal Representative of Kaliammal and that he has to establish the genuineness of Will only by filing separate suit and that no relief could be granted to him by impleading him in the suit.

7. To explain the delay the third Respondent examined himself as PW-1 did not produce the Will. Upon consideration of the evidence and contentions of both parties, the learned District Munsif found that the genuineness of the Will could be gone into only at the time of trial. The learned District Munsif was of the view that the scope of enquiry in the application is limited in finding out whether sufficient cause is shown for the delay and whether the abatement is to be set aside. On those findings, the trial Court allowed the application under Section 5 of the Limitati