RAMANUJAM, J. :- This appeal is directed against the judgment of N. S. Ramaswami J. in A. S. No. 435 of 1969 confirming the decision of the Sub Court, Coimbatore in O. S. No. 345 of 1964.

2. The suit O. S. No. 345 of 1964 has been filed by one Rathnammal, the first respondent herein, for partition and separate possession of her 1/5th share in the suit properties consisting of a house in Coimbatore and certain lands in Peria, Godiveri village in Gobichettipalayam taluk. The plaintiff and defendants 2 to 4 are the children of the first defendant through his wife Annammal who died in December 1952. The suit properties belonged to Annammal. On the ground that Annammal died intestate the plaintiff has claimed her one-fifth share in the suit properties. The fourth defendant who is another daughter of Annammal also claimed her one-fifth share by paying the necessary court-fee on her written statement. During the pendency of the suit the first defendant died. Thereafter the plaintiff and the fourth defendant each claimed one-fourth share.

3. Defendants 2 and 3 who are the sons of Annamal had set up a will dated 15-2-1952 as the last will and testament left by Annammal. Under that w