The suit was found bad for non-joinder of necessary parties, and the findings on the Will and permanent injunction were set aside.

The appeal is filed by the 5th defendant in O.S.No.150/2012. The said suit was filed by the 1st respondent herein seeking partition and separate possession of 3/4th share. According to the first respondent/plaintiff, the suit properties originally belonged to one Rasa Gounder, who died in the year 1981, leaving behind four daughters viz., Periya Ramayal, Ammaniammal, Ammani and Pottayal. Out of the above four daughters, Periya Ramayal died leaving behind the defendants 1 and 2 as her legal representatives. The plaintiff claims to have purchased the entire property from the defendants 1 to 4 under a sale deed dated 03.05.2010. The said sale deed was executed by one P. Muthusamy as the Power Agent of the defendants 1 to 4. Though the plaintiff had purchased the entire property, he having found that the 5th defendant is also a sharer has chosen to file the suit for partition seeking 3/4th share.

2. The said suit was resisted by the 5th defendant contending that the suit properties were absolute properties of the said Rasa Gounder. The said Rasa Gounder was living with her. According to her, the said Rasa Gounder had executed a registered Will dated 04.08.1975, in and by which, he bequeathed the suit properties to her. Therefore, after the death of Rasa Gounder, the suit properties had devolved on her and she is in possession and enjoyment of the suit properties as per the Will.

3. She would also contend that the defendants 1 to 4 had earlier filed the suit for partition in O.S.No.219 of 2008 on the file of the Sub Court, Erode, and the same was transferred to Perundurai Sub Court, and re-numbered as O.S.No.239 of 2009. During the pendency of the said suit, the defendants 1 to 4 have alienated the property in favour of the plaintiff and allowed the said suit dismissed for non-prosecution. On the above pleadings, the 5th defendant sought for dismissal of the suit. The other defendants namely; the vendors of the plaintiff remained ex-parte. On the above pleadings, the learned I Additional District and Sessions Judge, Tirruppur, framed the following issues :

1. Whether the plaintiff entitled for the relief of partition separate possession and permanent injunction as claimed in the plaint?

2. Whether Rasa Gounder and Angayammal died intestate?

3. Whether Rasa Gounder executed a Will dated 04.08.1975 in favour of 5th defendant?

4. Whether the suit is barred by Resjudicate or order 2 Rule 1 of C.P.C?

5. To what relief the plaintiff is entitled to?

Issue No.2 was deleted while pronouncing Judgement, additional issue no.6 was framed.

6. Whether the suit is bad for non-joinder of necessary parties?

4. The above said issues were recast as follows at the time of pronouncing Judgement :

1. Whether the suit is barred by Resjudicate, order 2 Rule 1 of CPC?

2. Whether Rasa Gounder executed a Will dated 04.08.1975 in favour of the 5th defendant?

3. Whether the suit is bad for non-joinder of necessary parties?

4. Whether the plaintiff entitled for the relief of partition, separate possession and permanent injunction as claimed in the plaint?

5. To what relief the plaintiff entitled for?

5. The trial Court found that the suit being one partition the dismissal of the earlier suit, for partition, for non prosecution did not bar the present suit and first issue was answered in favour of the plaintiff. On the second issue relating to the Will executed by Rasa Gounder dated 04.08.1975, the learned trial Judge concluded that in absence of any reason for dis-inheriting the defendants 1 to 4 in the Will and in the light of the evidence of the D.W-2, attesting witness who had deposed that the Will attested by him contained the said reasons, the trial Court disbelieved the Will and held that the 5th defendant has not proved the Will. On the 3rd issue relating to the non-joinder of parties, it was not raised in the written statement. However, in the proof affidavit filed by her the 5th defendant had taken a specific plea that the properties were purchased by Rasa G