COMMON JUDGMENT

M.CHOCKALINGAM, J

This judgment shall govern the two apeals viz. A.S. 250 and 783 of 1987.

2. These two appeals have arisen from the judgment of the learned Subordinate Judge, Dindigul made in O.S.No.114/82, a suit for partition, which was jointly tried along with O.S.Nos.195 and 196 of 1983.

3. The appellant in A.S.No.783/87 along with her brother Chinnasamy filed the said suit for partition against the appellants in A.S.No.250/87 who were shown as defendants 1 and 3 and against so many others. The trial Court granted a preliminary decree for partition and separate possession allotting 13/15th share in the 'A' Schedule property, while it rejected the claim of the plaintiffs in respect of the immovable properties covered under suit 'B' Schedule. Aggrieved over the denial of their claim in respect of 'B' Schedule, the first plaintiff has brought forth A.S.No.783/87. The defendants 1 and 3 who were aggrieved over the grant of the preliminary decree in favour of the plaintiffs in respect of the 'A' Schedule property have preferred A.S.No.250/87.

4. The plaintiffs have alleged in the amended plaint as follows:

Sundaram Pillai and his brother Muthiah Pillai along with Shanmugavel Pillai purchased the property under 'A' Schedule and enjoyed the same jointly. Muthiah Pillai and Sundaram Pillai constituted members of an undivided joint Hindu family. Muthiah Pillai died leaving his wife Thayammal as his heir, and on his death, she became entitled to 1/3rd share of her husband. Sundaram Pillai died, and as per the provisions of Hindu Succession Act, 1956, the mother of the plaintiffs became entitled to his 1/3rd share. The property was improved with the income from 'A' Schedule property. 'B' Schedule properties were also purchased from and out of the income from 'A' Schedule property. The plaintiffs' father had no right to lease the entire 'A' Schedule property, and the alleged lease is also hit by lis pendens. The 4th defendant even if he is held to be a lessee, can claim right only against the 1/3rd share of Shanmugavel Pillai and is not entitled to or claim possession of 'A' Schedule property. Shanmughavel Pillai died on 27.12.81 leaving the plaintiffs, their mother and the defendants 1 and 2 as heirs, and in the 1/3rd share of Shanmughavel Pillai, the said five became entitled to 1/5th share. The mother of the plaintiffs died on 28.12.81. On her death, the plaintiffs became entitled to 13/15th share in the suit properties. She executed a Will on 21.3.78 bequeathing her right in the 'A' Schedule property in favour of the first plaintiff, and thus, 2/3rd share in that property belonged to the first plaintiff. In respect of 'B' Schedule properties, the plaintiffs are entitled to 13/15th share together. Shanmugavel Pillai became bedridden and lost his reasoning capacity, and he had no capacity to execute any Will. The alleged Will is a forged one. The same was brought about by the defendants 1 and 2 by exercising undue influence and coercion over him. Neither the defendants nor their sons are entitled to claim any right in the suit properties under the alleged Will. Hence, the suit may be decreed as prayed for.

5. The defendants 1 to 3 filed a written statement with the following averments:

Sundaram Pillai and Muthiah Pillai were undivided brothers. Muthiah Pillai died in the year 1918 leaving his brother Sundaram Pillai as his coparcener. As per the law prevailing then, the share of Muthiah Pillai devolved upon his undivided coparcener. After the death of Muthiah Pillai, Sundaram Pillai and Shanmugavel Pillai have become the owners of the suit 'A' Schedule property. Sundaram Pillai was not interested in the worldly life, and he orally gifted his right in the 'A' Schedule property to his sister's son Shanmugavel Pillai. Shanmugavel Pillai got the patta transferred in his name, and he was paying kists. He was in continuous, open and uninterrupted possession of the said property as absolute owner from 1920 till his de