The main legal point established in the judgment is the requirement of consent of heirs for a will exceeding 1/3rd of the estate, and the necessity of possession divestment for a valid gift deed.

1. This appeal is against the judgment and decree dated 12.9.1994 in O.S.No.143 of 1993 on the file of the Sub Court, Udumalpet, in dismissing the suit, filed by appellants.

2. For convenience, the parties are referred as arrayed in the suit.

3. The plaintiffs state as follows:

The plaintiffs are the daughters of late P.K.Moosa Rowther, who died on 29.6.1984. The first defendant is the widow of the said P.K.Moosa Rowther. The second defendant is another daughter and the defendants 3 to 5 are his sons. The defendants 6 to 12 are tenants in the suit properties. After the death of the said P.K.Moosa Rowther, the properties owned by him would devolve upon the legal heirs. However, the first defendant being the mother of the plaintiffs and the defendants 2 to 5 prevailed upon the plaintiffs and postponed the claims of the plaintiffs for fair partition and division of the suit properties. As on today, all do not appear going well. The defendants 3 to 5 have been enjoying the incomes from the suit properties without giving any share of income to the plaintiffs yet the plaintiffs never revolted against them. The plaintiffs have no ill-will neither against their mother nor brothers. But the stage has come that the plaintiffs can no longer wait without getting their due share in the properties since the defendants 3 to 5 have openly come out asserting their exclusive right and title. However, the first defendant having become silent the defendants 3 to 4 have begun to exercise such rights which apparently shown also on behalf of the plaintiffs herein, now seem to have conceived an idea to claim exclusive right and title which are detrimental to the plaintiffs legal right. The defendants 3 to 5 have also created certain documents in their favour as if they became entitled to the suit properties to the exclusion of their heirs after the demise of their father. It is stated that the late P.K.Moosa Rowther had executed a will. But no such documents was ever written or executed by the said late P.K.Moosa Rowther. So the suit properties of P.K.Moosa Rowther on his death devolved upon the legal heirs, that is the plaintiffs and also the defendants 1 to 5. Therefore, the plaintiffs have filed the suit for granting a decree for fair partition of the suit properties by metes and bounds and allot their respective shares and also for ordering enquiry for mesne profits under Order 20 Rule 12 C.P.C.

4. The 4th defendant states as follows:

The suit is false, frivolous, vexatious, not at all maintainable in law and on facts. The allegations made in the plaint are denied as false. The fourth defendants states that the late P.K.Moosa Rowther has left neither movable nor any immovable without dispossession. He has disposed off all movable and immovable even during his life time. The plaintiffs have no right, title or any interest in any of the suit properties. Late P.K.Moosa Rowther has executed and registered a Will dated 12.2.1980 bequeathing the item of the B Schedule property in favour of the defendants 3 and 5 and the 1st son of the 4th defendant and also executed a registered deed of Hiba dated 24.7.1981 in favour of the 5th defendant and two sons of the 4th defendant giving joint possession immediately on 24.7.1981. The fact which is true is that the defendants 3 and 5 and the 1st son of the 4th defendant are claiming exclusive right title and interest in the 1st item and the 5th defendant and the two sons of the 4th defendant are claiming exclusive right, title and interest in the 2nd item. The defendants 3 to 5 have not created any documents in favour of any person as alleged. The plaintiffs have not issued a pre-suit notice demanding partition. The plaintiffs are not entitled to any share in any of the properties. Hence, he prays the Court to dismiss the suit.

5. The 5th defendant states as follows:

The suit is false and not maintainable either in law or on facts. The allegations made in the plaint are denied as false. The alle