T. Ravindran, J.

The second defendant has preferred this second appeal, challenging the judgment and decree dated 3.8.2010 made in A.S.No.126 of 2009 on the file of the first Additional District Court, Coimbatore, reversing the judgment and decree dated 02.12.2008 made in O.S.No.369 of 1998 on the file of the Sub-Court, Tiruppur.

2. The suit has been laid for partition by the plaintiff.

3. The averments contained in the plaint in brief are as follows: The suit property originally belonged to the plaintiff's father Marudha Gounder by virtue of the sale deed dated 05.09.1962. The plaintiff and the first defendant are the sons of Marudha Goundar. Marudha Gounder died intestate on 16.11.1996 leaving behind the plaintiff and the first defendant as his legal heirs. After the death of Marudha Gounder, the plaintiff and the first defendant are in joint possession and enjoyment of the suit property. Despite demands by the plaintiff for partitioning the suit property, the second defendant, who is the wife of the first defendant, had stalled the same claiming that the suit property absolutely belonged to her by virtue of the settlement deed dated 30.12.1998 executed by the first defendant. Since the defendants have not come forward to effect the partition as sought for by the plaintiff, the suit has been laid.

4. The averments contained in the written statement filed by the first defendant are briefly stated as follows:

The fact that the suit property was purchased by Marudha Gounder, is admitted. The plaintiff was leading a wayward life and he never cared for his father. Only the first defendant was maintaining his father, till his death. On account of the old age, Marudha Goundar sold 2 acres of land to Sadayappa Goundar and the same has not been objected by his sons viz., plaintiff and the first defendant. The remaining 2 acres of land purchased by Marudha Goundar was in his possession and enjoyment and inasmuch as the first defendant was affectionate to his father and also looking after him, Marudha Goundar had executed a registered Will dated 21.03.1979 bequeathing his property and also the property sold to Sadayappa Gounder. After the death of Marudha Goundar, the defendant became the owner of the suit property by virtue of above mentioned Will and he was in possession and enjoyment of the suit property and the plaintiff was not in joint possession and enjoyment of the suit property as alleged in the plaint. The defendant had executed a registered settlement deed in respect of the suit property in favour of his wife Saraswathy, the second defendant, on 30.12.1998 and pursuant to the same, the second defendant is in possession and enjoyment of the suit property. Hence, the suit is liable to be dismissed.

5. The averments contained in the written statement filed by the second defendant are briefly stated as follows: The suit property originally belonged to Marudha Goundar. He had executed a Will out of his own volition in the year 1979 in favour of the first defendant and subsequently, sold half of the property covered under the Will to one Sadayappa Gounder, the remaining extent of the property devolved upon the first defendant by virtue of the Will. After the demise of Marudha Goundar, the first defendant was enjoying the suit property. On 30.12.1998, the first defendant had executed a settlement deed in favour of the second defendant and accordingly, the second defendant is in possession and enjoyment of the suit property. Original Will, which was in the custody of the second defendant, had been lost and despite diligent efforts, the same could not be traced. As the second defendant is the absolute owner of the suit property, the plaintiff has no right to claim partition in respect of suit property and hence, the suit is liable to be dismissed.

6. In support of the plaintiff's case, Pws.1 and 2 were examined and Exs.A1 to A8 were marked. On the side of the defendants, DWs1 to 5 were examined and Exs.B1 to B12 were marked. Furth