1. The third defendant has filed the above application seeking rejection of the partition suit in C.S.No.423 of 1995 filed by the plaintiff V.K.John.

2. It is the case of the plaintiff V.K.John that the suit property originally belonged to Elie John, who died leaving behind K.John-the father of the plaintiff, Appu John, the deceased first defendant and Mrs.Leelie the deceased second defendant. The plaintiff V.K.John is the sole surviving heir of K.John. The plaintiff claimed 1/3 share in the suit property. The third defendant W.S.Seetharam has been impleaded as the legal heir of the deceased second defendant. On the demise of Appu John, one Prema Chandrasekar, who claimed that she is one of the beneficiaries under the Will, executed by Appu John was arrayed as fourth defendant and T.R.T.Thirumalvasi who claim that he has been appointed as Executor under the said Will was impleaded as fifth defendant in the suit.

3. In the present application filed by the third defendant, it is contended that appropriate court fee was not paid by the plaintiff who has not been in actual possession and enjoyment of the suit property. The plaintiff filed a non testamentary partition suit under the Indian Succession Act claiming only the share of his deceased father K.John. The plaintiffs fathers assets vest with the Official Assignee on adjudication as an insolvent. Therefore, no property of the plaintiffs father is available for partition. Of course, the Will dated 2. 1974 executed by Mrs.Elie John is a true and genuine one. The plaintiff, who had the Will executed by his grandmother late Mrs.Elie John, could have filed the Will even in the year 1995. The plaintiff hid his grandmothers Will for so long time. In the above circumstances, the relief of partition of his fathers share cannot be granted. Therefore, the third defendant has sought for rejection of the suit.

4. The plaintiff has filed a counter stating that the suit has been taken up for trial and the parties have already been examined. None of the conditions stipulated in Order 7 Rule 11 of the Code of Civil Procedure is existent. Once the issues are framed, the court is bound to pronounce the judgment on all issues except the issue relating to the jurisdiction of the court or bar of the suit created by any law in force. Appropriate court fee has been paid in a partition suit where the plaintiff claimed that he has been in joint possession of the suit schedule properties. The plaintiff is only seeking to add another root of title to his claim for partition of the suit schedule properties. He is entitled to claim right to the property through as many roots to the suit properties as he has. Therefore, the plaintiff has sought for dismissal of the application seeking to reject the plaint.

5. The fourth defendant has contended in the written statement that the plaintiff had suppressed wilfully and deliberately for over 12 years, the genuine Wills executed by Mrs.Elie John. The application filed by the plaintiff seeking to add a prayer to declare that he is the absolute owner of the suit schedule mentioned properties in C.S.No.423 of 1995 was dismissed by this court. Therefore, she would submit that the suit in C.S.No.423 of 1995 is liable to be dismissed.

.6. The fifth defendant T.R.T.Thirumalvasi would contend that the partition suit will lie only when the original owner died intestate. After a Will has been left behind by Mrs.Elie John, the same will have to be probated in the manner known to law. The question of continuing the partition suit does not arise. The conduct of the plaintiff, who never whispered anything about the Will executed by Mrs.Elie John during the course of evidence, will have to be noted by this court. The fabricated Will is now projected to overcome the insolvency proceedings of the father of the plaintiff who was declared as insolvent and the consequent vesting of his properties in the Official Assignee. The testamentary succession and intestate s