The 6th defendant, who lost his case before both the courts below, has filed this Second Appeal against the Judgment and Decree dated 111. 2000 passed in AS.No.211/1999 by the learned II Additional District Judge, Coimbatore, confirming the Judgment and Decree dated 210. 1998 passed in OS.No.2200/1994 by the learned I Additional District Munsif, Coimbatore.

2. Thecase of the Plaintiffs/the Respondents 1 to 3 herein is as follows:-

a. The 1st Plaintiff is the son of one Kandasamy. The said Kandasamy had four sons viz. (1) Palaniappan, the 1st Plaintiff, (2) Venkatachalam, (3) Sundaram, the father of the Plaintiffs 2 and 3, (4) Palanisamy and the daughter Ponnammal, the 1st Defendant. The Defendants 2 to 5 are the wife and children of late Venkatachalam, who died in the year 1981, leaving behind him the Defendants 2 to 5 as his heirs. Sundaram died on 20.2.1994 leaving behind him the Plaintiffs 2 and 3 as his heirs. The Defendants 2 to 5 are entitled to 1/5th share of late Venkatachalam. The suit property and some other property originally belonged to one Palaniappan, who is the grand father of the 1st Plaintiff.

.b. After the life time of Palaniappan, his son Kandasamy and grandsons Palaniappan, Venkatachalam, Sundaram and Palanisamy, the sons of Kandasamy constituted a Hindu undivided property and they were in possession and enjoyment of the family property. Since Kandasamy did not agree for partition, his sons, Palaniappan, the 1st Plaintiff, Venkatachalam, the father of the Defendants 3 to 5 and the husband of the 2nd Defendant and Sundaram, the father of the Plaintiffs 2 and 3 herein filed a suit for partition in OS.NO.1812./1974 before the Additional District Munsif Court, Coimbatore, against Kandasamy, his another son Palanisamy and daughter Ponnammal. In that suit, a preliminary decree was passed on 21. 1977 directing the division of the property into 5 equal shares and allotment of 3 shares to the Plaintiffs therein. In pursuance of the preliminary decree, an application for passing of final decree has been filed and the same is pending. By oversight and inadvertently, the property described in the schedule in the present suit was not included in the earlier suit for partition. In October 1994, the Plaintiffs came to know about the sale of the suit property by Ponnammal and Palanisamy, Children of Kandasamy under a sale deed dated 14. 1983, who were stated to have derived title to the suit property under a Will said to have been executed during the pendency of the earlier suit proceedings, when no specific share was allotted. The property conveyed to the 6th Defendant herein is the ancestral property in which Kandasamy and Palanisamy had 2/5th shares only and the Plaintiffs jointly are entitled to 2/5th share and hence, the sale in favour of the 6th Defendant inclusive of the Plaintiffs share is not valid and binding and hence, the present suit has been filed for partition and separate possession.

3. The case of the Respondents 4 to 8/the Defendants 1 to 5 and the Appellant/6th Defendant is as follows:-

a. The suit is barred by time. In the earlier suit, the suit property has been left out, since it is the exclusive property of the father Kandasamy and hence, the present suit is barred by Res Judicata. The suit is bad for non joinder of necessary parties viz. legal heirs of Palanisamy one of the beneficiaries under the Will. It is incorrect to state that the suit property is the ancestral property. The late Kandasamy put up construction at his own cost and it was treated as the independent property of the father Kandasamy, who had been in enjoyment of the same throughout his life time and he bequeathed the same to his daughter Ponnammal and after her life time, to his son Palanisamy. The 6th Defendant purchased the said property in 1983 and made improvements therein. At that time, the Plaintiffs and late Sundaram were aware of the sale, but did not question the same at all and no final decree proceedings are p