A. Selvam, J.

1. These Original Side Appeals have been preferred against the common judgment passed in T.O.S. No. 13 of 1998 and Transfer C.S. No. 159 of 2000 by the learned Single Judge of this Court.

2. Pending appeal, a memo dated 30-09-2016, has been filed by the appellants stating that the first appellant in both the appeals, Smt. Rajeswari W/o. Murugesa Nadar died pending appeals on 14-02-2014 and her legal representatives, (who are none other than remaining appellants and respondents), are already on record. The said memo is taken on record.

3. The appellants in both the appeals have filed T.O.S. No. 13 of 1998 praying to grant letter of administration in respect of the Will dated 24-05-1994. The deceased second respondent in O.S.A. No. 188 of 2004 and first respondent in O.S.A. No. 189 of 2004, as plaintiff has instituted Transfer C.S. No. 159 of 2000 for the relief of partition.

4. The material averments made in the plaint filed in T.O.S. No. 13 of 1998 can be summarised as follows:

"The first plaintiff is the wife of Murugesa Nadar. The plaintiffs 2 and 3 and defendants 1, 3 to 6 are their children. The second defendant is a daughter-in-law of first plaintiff and the said Murugesa Nadar. The property mentioned in the Schedule is the absolute property of the said Murugesa Nadar and he voluntarily executed the Will dated 24-05-1994 in favour of the plaintiffs and he passed away on 29-10-1994. Under the said circumstances, the present suit has been instituted for the relief sought therein."

5. In the written statement filed on the side of the defendants 1, 4 and 5, it is averred that the relationship mentioned in the plaint is correct. It is false to aver that the property mentioned in the Schedule is the absolute property of Murugesa Nadar and the same is nothing but a joint family property and he passed away on 29-10-1994 leaving behind him, the plaintiffs and defendants as his legal heirs. It is false to aver that he executed the Will mentioned in the plaint. The deceased Murugesa Nadar has got birth in the year 1910 and he passed away at the age of 84. He has been admitted in Government Hospital, Chennai in the month of June 1987 for cerebral hemorrhage due to hyper tension. He also suffered from severe paralytic attack and his right side body has become totally paralysed. Further, his brain has become badly affected. Till his death, he has not been able to speak. Under the said circumstances, the Will mentioned in the plaint is not genuine. At the most, each party is entitled to get one-ninth share in the property mentioned in the Schedule and there is no merit in the suit and the same deserves to be dismissed.

6. The material averments made in the plaint filed in Transfer C.S. No. 159 of 2000 are as follows:

"The first defendant is the wife of Murugesa Nadar. The property mentioned in the Schedule is the joint family property and the said Murugesa Nadar has passed away on 29-10-1994 leaving behind him the plaintiff and defendants as his legal heirs. Under the said circumstances, each sharer is entitled to get one-ninth share in the suit property. Since the defendants are not amenable for partition, the present suit has been instituted for the reliefs sought in the plaint."

7. In the written statement filed by the defendants 1, 6, 7 and 8, it is averred that the defendants Murugesa Nadar has passed away on 29-10-1994. It is false to aver that the suit property is the joint family property and the same is nothing but his self-acquired property and he bequeathed the same under a Will. The plaintiff is not having right of partition over the suit property and therefore, the present suit deserves to be dismissed.

8. 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 T.O.S. No. 13 of 1998 and decreed Transfer C.S. No. 159 of 2000 in part by way of passing the impugned common judgment and t