1. A.S.581 of 1987 arises out of Succession O.P.No.57 of 1983 on the file of the Subordinate Judges Court, Nagercoil. Transfer A.S.No.105 of 1992 arises out of O.S.No.18 of 1984 on the file of the same Court. Respondents 6, 8 and 9 in Succession O.P.No.57 of 1983 are the appellants in A.S.No.581 of 1987. They are the appellants in the transfer appeal also. The petitioner and respondents 2 to 4, 7 and 10 to 15 in Succession O.P.No.57 of 1983 are the respondents in A.S.No.581 of 1987, and defendants 2 and 4 to 13 in O.S.No.18 of 1984.

2. We will refer to the parties as per their ranks in the suit in O.S.No.18 of 1984.

3. The suit was filed by one Thangaraj, and Jeyaraj/ the first appellant herein, pending suit, Thangaraj died on 29.1.1984; plaintiffs 3 and 4 were impleaded as L.Rs. of the deceased Thangaraj, as per the order in I.A.No.141 of 1984 before the lower Court; the first defendant died on 20.8.1985; her L.Rs. were brought on record as additional defendants 8 to 13 as per the order dated 10.10.1985 before the lower Court; plaintiffs 1 and 2 and defendants 1 to 5 are respectively the brothers and sisters of one Sunderraj; the seventh defendant/Dr.S.S. Rajan is a cousin of the said Sunderraj; and the suit in O.S.No.18 of 1984 was filed for partition and separate possession of certain items of properties.

4. The case as set out in the plaint, was as follows:

Plaintiffs 1 and 2 and defendants 1 to 5 are the brothers and sisters of one Sunderraj; their father being one Kochumoni Nadar; Kochumoni Nadar died in the year 1949 and his widow in the year 1962; Sunderraj was their eldest son and he died unmarried on 20.6.1981, leaving behind plaintiffs 1 and 2 and defendants 1 to 5 to succeed to his properties set out in the schedule to the plaint; plaintiffs 1 and 2 were entitled to 2/7th while defendants 1 to 5 together would be entitled to 5/7th; the sixth defendant one Sathyaseelan had got some encumbrance from defendants 1 to 5 in the suit properties, therefore he had been impleaded as party; on 20.2.1982, the request of plaintiffs 1 and 2 for effecting a partition was finally made; and defendants 1 to 5 not having agreed to the same, the suit came to be filed.

5. Defendants 1, 2 4 and 6 filed a written statement containing the following averments:

The suit as framed was not maintainable; the building in the plaint item 3 alone was worth about Rs.75,000 in the total market value of the suit properties was not less than Rs.1,40,000; the plaintiffs had deliberately undervalued the suit to avoid payment of proper Court-fees; Sunderraj left a registered Will, dated 20.5.1981; even though the plaintiffs were fully are of that Will, they had chosen to file the suit; the plaintiffs could not claim any right in the suit properties; the devolution was only under the Will, dated 20.5.1981; under the said Will Sunderraj disposed of all his properties in favour of defendants 1 to 5 and Dr.S.S.Rajan/ seventh defendant, who had not been impleaded in that suit, he being the only son of Sunderrajas mothers sister; under the Will, the first defendant got E schedule property the second defendant got D schedule property and the fourth defendant got B schedule property; the plaint schedule item 5 belonged to the fourth defendant exclusively; the plaint schedule items 1 and 2 belonged to the second defendant absolutely and item 2 was sold away to the sixth defendant, who was in possession of that item; the northern half of the plaint item 6 belonged exclusively to the first defendant, while the southern half belonged to Dr.S.S.Rajan, who got F schedule properties; defendants 1, 2, 4 and 6 were accordingly in possession of several items as absolute owners, and plaintiffs 1 and 2 were well aware of the same; the plaintiffs published a notice in the Tamil daily Dina Malar dated 10.1.1981 claiming that the children of the second plaintiff alone were entitled to the properties of Sunderraj; there was a counter notice published by relying on the