The main legal point established is that the applicability of Act 1 of 1990 to partition claims involving ancestral property must be carefully analyzed, and the entitlement of the parties to a share should be determined based on the relevant legal provisions.

A. SELVAM, J.

1. This Original Side Appeal has been directed against the judgment and decree dated 29-10-2010 passed in C.S.No.413 of 2004 by the learned Single Judge of this Court.

2. The appellants herein, as plaintiffs, have instituted C.S.No.413 of 2004 on the file of this Court praying to pass a preliminary decree of partition wherein the present respondents have been shown as defendants.

3. In the plaint, it is averred that the plaintiffs and defendant Nos.3 and 4 are the children of Govindarajan. The said Govindarajan has passed away on 07-06-1997 leaving behind him, the plaintiffs and defendant Nos.2 to 4 as his legal heirs. The suit property is the separate property of the said Govindarajan. Since he passed away on 07-06-1997, each plaintiffs is entitled to get one-fifth share. The defendant Nos.3 and 4 are not amenable for partition. Under the said circumstances, the present petition has been filed for getting the relief sought therein.

4. In the written statement filed by the third defendant adopted by the fourth defendant it is averred that the relationship mentioned in the plaint is correct. But, it is false to say that the suit property is the separate property of the deceased Govindarajan and in fact, he got the same by way of partition among himself and his brother by name Krishnan. Therefore, the suit property is nothing but an ancestral property. The deceased Govindarajan has also left some separate properties. In respect of his separate properties, a Will has been executed by him and further, it is averred in the written statement that the plaintiffs have sold the property mentioned in the Will and altogether, the plaintiffs are not entitled to get the relief sought in the suit and therefore, the same is liable to be dismissed.

5. On the basis of the rival pleadings raised on either side, the learned Single Judge has framed necessary issues and after analysing both the oral and documentary evidence has dismissed the suit mainly on the ground of partial partition. Against the judgment and decree passed by the learned Single Judge, the present appeal has been preferred at the instance of the plaintiffs, as appellants.

6. The sum and substance of the case of the plaintiffs is that the suit property is the separate property of Govindarajan, who is none other than the father of the plaintiffs, defendant Nos.3 and 4 and husband of the second defendant and since he passed away in the year 1997, each of them is entitled to get one-fifth share and the defendant Nos.3 and 4 have refused to effect partition and therefore, the present suit is filed to effect partition.

7. The main defence put forth on the side of the contesting defendants is that the deceased Govindarajan has had some self-acquired properties and in respect of the same he executed a Will. But the plaintiffs have sold the property mentioned in the Will and further, the share claimed by the plaintiffs is erroneous.

8. The learned Single Judge as pointed out earlier has dismissed the entire suit mainly on the plea of partial partition.

9. The learned counsel appearing for the appellants/plaintiffs has sparingly contended that even though on the side of the contesting defendants a written statement has been filed, no plea has been raised with regard to partial partition and further, there is no specific issue in respect of the said aspect and the learned Single Judge even without considering the vital evidence available on record has simply dismissed the suit on the ground of partial partition and therefore, the judgment and decree passed by the learned Single Judge are liable to set aside.

10. Per contra, the learned counsel appearing for the contesting respondents has raised the following points:

(1) The suit property is nothing but an ancestral property and as per Act 1 of 1990 the plaintiffs are not having any right of partition.

(2) The deceased Govindarajan has already executed a Will wherein it has been specifically stated that the property mentioned