K.Govindarajan, J.

1. The above appeal is preferred by the plaintiff having aggrieved by the judgment and decree of the trial Court rejecting the relief sought for in the suit with respect to plaint ‘A’ schedule property, dwelling house.

2. The plaintiff is the sister of defendants 1 to 3. 4th defendant is the wife of 1st defendant, who is the brother of the plaintiff. Defendants 5 and 6 are daughters of 1st defendant. The 2nd defendant is the unmarried daughter of one Rathina Sabapathy and sister of the plaintiff and defendants 1 and 2. The appellant/plaintiff filed a suit in O.S.No.3053/1998, on the file of the 7th Addl. City Civil Court, Chennai for partition of the suit properties, mentioned as plaint ‘A’ and ‘B’ Schedules, into 4 equ al shares and allot one such share to her. She filed the suit stating that the suit properties are the absolute properties of Rathina Sabapathy, her father who died leaving the appellant/plaintiff and defendants 1 to 3 and their mother Krishnaveniammal as his heirs. Krishnaveniammal also died in 1994. Pending suit, 1st defendant also died leaving the 4th defendant, his wife and his daughters 5 and 6. On the basis of the above said pleading, the plaintiff has come forward with the said suit.

3. The 1st defendant filed a written statement stating that the grandfather, Appasami Mudaliar executed a registered Will dated 21.10.1918 bequeathing the properties in favour of his sons. It is also stated that the grandmother Mrs.Kamalammal was appointed as executrix of the Will. The same was probated in O.P.No.274/1919. Subsequently, Rathinasabapathy Mudaliar and his brother Thirunavukarasu Mudaliar executed a partition deed dated 2.7.1951, marked as Ex.B1. Rathinasapabathy Mudaliar was put into posses sion of the properties at No.17, Tailors Road, Kilpauk, Madras and No.36, Hunters Road, Vepery, Madras. It is specifically stated by the 1st defendant that the said ancestral property at No.17, Tailors Road, Kilpauk was sold in November 1961 on his behalf and on behalf of the 1st defendant by Rathinasabapathi Mudaliar and subsequently his father purchased the ‘B’ schedule property by virtue of a sale deed dated 9.3.1962 utilising the sale consideration obtained by selling the property at No.17, Tailors Road, Kilpauk, Madras. It is also stated that the ancestral property at No.36, Hunters Road, Vepery, Madras was sold by his father on 29.3.1973 on his behalf and also on behalf of the 1st defendant, and the ‘A’ schedule property was purchased on the same day on 29.3.1973 from out of the said sale consideration. The 1st defendant denied that the suit properties got by Rathinasabapathy Mudaliar are self-acquired properties. The other averments need not be narrated as they are not relevant for the purpose of disposal of the above appeal.

4. Defendants 2, 4 and 6 adopted the written statement of the 1st defendant. 3rd defendant remained absent and set ex parte .

5. The trial Court framed only two issues, namely, (1) Whether the plaintiff is entitled for partition; and

(2) To what relief the plaintiff is entitled ?

6. While deciding the 1st issue, the trial Court found that the ‘B’ schedule property is the absolute property of Rathinasabapathy Mudaliar and so the plaintiff is entitled to 1/4th share as she claimed. With respect to ‘A’ schedule property, applying Sec.23 of the Hindu Succession Act, 1956, hereinafter called ‘the Act’, the trial Court rejected the suit holding that on the date of the suit, the 1st defendant was alive and so the plaintiff cannot sustain the suit. The said finding was given by the trial C ourt though the 1st defendant died pending suit.

7. The plaintiff having aggrieved by the rejection of the suit with respect to ‘A’ schedule property, preferred an Appeal in A.S.No.69/2003. Defendants 2 and 5 filed the Cross Objection, questioning the decree granting partition with respect to ‘B’ schedule property.

8. The above appeal and Cross Objection were posted before the Divi