The defendant in O.S. No. 301 of 1989 on the file of Principal Subordinate Judge, Tirunelveli is the appellant in this appeal. The said suit was filed by the respondents 1 and 2 herein for partition and separate possession of the 1/4th share in the schedule mentioned properties in the plaint by metes and bounds. The suit was decreed by passing a preliminary decree.

2. For the sake of convenience, the parties shall be referred to as they were arrayed in the suit.

.3. The facts that led to filing of the plaint was that the suit property originally belonged to one Mary Fernando. The said Mary Fernando sold the suit property through her power of attorney Innasi Fernando in favour of the defendant and mother of the plaintiffs namely Pushpam Ammal by a registered sale deed dated 211. 1971 and from the date of such purchase, the defendant and mother of the plaintiffs were in peaceful possession and enjoyment of the suit property. While so, the said Pushpam Ammal, mother of the plaintiffs and Thavamani Nadar, husband of Pushpam Ammal and father of the plaintiffs, have jointly executed a registered Will dated 26.03.1985 bequeathing all the properties belonged to them, including the schedule mentioned property in the suit, to the plaintiffs. According to the plaintiffs, the executants namely Pushpam Ammal and Thavamani Nadar have executed the Will in a sound and disposing state of mind without coercion or undue influence.

.After the death of the said Pushpam Ammal, the plaintiffs have claimed their share of the property as they are the legatees and beneficiaries under the Will. According to the plaintiffs, under Law, they have taken joint possession of the suit property along with the defendant. They would contend that the plaintiffs and defendant are joint owners of the property. As the defendant started making disturbances in regard to joint possession, according to the plaintiffs, it is no longer possible to enjoy the property jointly, hence, they have filed the suit claiming partition and separate possession of the schedule mentioned property.

4. Thedefendant filed written statement contending that the plaintiffs are none other than his brothers-in-law. It is true that the property stands in the name of the defendant and the mother of the Plaintiffs Pushpammal, but it is he who paid the entire sale consideration and Pushpammal was only a name lender. This fact has been suppressed by the plaintiffs. Ever since the purchase of the suit property, this defendant was in possession of the property absolutely without any interruption from any one. Even the patta in respect of the property stood transferred in the name of the defendant. It was he who dug the well in the suit property by incurring a sum of Rs.30,000/-. He would also claim that he prescribed his title by ouster. He would mainly contend that Pushpammal was seriously ill for a long period of three years and she was affected by Cancer. She was not in a good state of mind. The defendant denied the Will is not a genuine one. According to the defendant, when Pushpammal was ill and bedridden for a period of three years and she was very week bodily and mentally, during that period, the plaintiffs, being her sons and residing along with her, took advantage of her illness and obtained the Will in dispute. The suit itself is premature as the plaintiffs cannot claim the suit property under the Will inasmuch the Will was executed jointly by Pushpammal and Thavamani Nadar and Thavamani Nadar is still alive. It was specifically contended by the defendant that the property was never in joint possession of the plaintiffs and the defendant and that he alone has dug the well by spending Rs.30,000/-.

5. The defendant has filed an additional written statement contending that the suit is bad for nonjoinder of parties namely Thavamani Nadar, who is the joint executant of the Will and is still alive and also for non-joinder of Jhansi, daughter of the deceased Pushpammal. In view of non