N. Sathish Kumar, J.

Both appeals came to be filed as against the judgment and decree passed in O.S.No.111 of 1995. A.S.No.767 of 2004 has been filed by the plaintiff and A.S.No.1273 of 2003 has been filed by the fourth defendant. Since both appeals are arising out of the same judgment, we are inclined to dispose both the appeals in a common judgment.

2. The plaintiff and defendants 2 to 5 are the children of one Kuppusamy Pillai. The first defendant is the wife of the Kuppusamy Pillai. Kuppusamy Pillai died intestate leaving behind the defendants 1 to 5 and they succeeded the suit property. The plaintiff is entitled to 1/6th share. Therefore, she issued a legal notice on 11.11.1994. The second defendant issued a reply notice dated 21.12.1994 with false averments alleging that Kuppusamy Pillai left the Will. Kuppusamy Pillai never executed any Will during his life time. Similarly Karai Olai is created one. Therefore, the plaintiff filed the suit praying for preliminary decree declaring the right in the properties.

3. The defendants 1 to 3 submitted that Kuppusamy Pillai prior to his death had executed a Will dated 06.04.1986 while he was in a sound disposing state of mind. The plaintiff and her sisters are not entitled to any share in the suit property. After the death of the Kuppusamy Pillai, the third defendant had exclusively discharged the debt of Rs.54,000/- and another sum of Rs.1,50,000/- incurred by the Kuppusamy Pillai. Subsequent to the said will, the defendants 1 to 3 orally divided the properties in pursuance of the terms of the said will and the same is evidenced by a Karai Olai, dated 17.09.1990 and hence prayed for dismissal of the suit.

4. It is the case of the defendants 4 and 5 that they are also entitled to 1/6th share in the suit properties. Besides the suit properties, Bank deposits and immovable properties are not included in the suit. The defendants 7 & 9 filed a statement stating that the Kuppusamy Pillai left the Will. The plaintiff is not in possession of the property. She is also aware of the Will executed by her father. Similarly except Door No.44 and 45 other properties mentioned in item No.1 were not available for partition.

5. Based on the respective pleadings of the parties the following issues are framed by the trial Court.

“(i) Will dated 06.04.1986 executed by the Kuppusamy Pillai is true and valid?

(ii) Karai Olai dated 17.09.1990 is true or not?

(iii) Whether the suit is barred for oral partition and plaintiff is entitled to 1/6th share

(iv) Court fee paid by the plaintiff is correct?”

6. On the side of the plaintiff one Ramachandran, who is the husband of the plaintiff, was examined as P.W.1 and marked 9 documents as Ex.A1 to Ex.A9 and on the side of the defendants 5 witnesses were examined as D.Ws.1 to 5 and marked three documents as Ex.B1 to Ex.B3.

7. Based on the evidence and materials available on record, the learned trial judge dismissed the suit filed by the plaintiff for partition. Aggrieved over the same, these appeals came to be filed by the plaintiff and the fourth defendant.

8. The learned counsel appearing for the appellant in both appeals submitted that the learned trial judge having found that the Will propounded by the defendants has not been established as per law and ought not to have given importance to the so-called unregistered partition document namely Karai Olai. It is the case of the defendants that they partitioned the properties only on the basis of the Will. Therefore, once will itself is not established, the trial Court giving importance to the Karai Olai, is not according to law. Hence, prayed for allowing the appeals.

9. The learned counsel appearing for the respondents would submit that the trial Court has failed to appreciate the evidence properly. Infact, the scribe has been examined as one of the attesting witness. He is not only the attesting witness but also scribe. He has clearly spoken about the execution of the Will by Kuppusamy Pillai. Once the will has