1. This First Appeal has been preferred by the plaintiff in O.S. No. 17 of 2004 on the file of the Additional District Judge (Fast Track Court), Thanjavur, as against the judgment and decree dismissing the suit.

2. The appellant filed the suit in O.S. No. 17 of 2004 on the file of the Additional District Court (Fast Track Court), Thanjavur, for partition and separate possession of her 1/5 share in the suit "A" and "B" and "C" schedule properties.

3. The suit "A" schedule property is a house site and house bearing Door No. 8A in Kumbakonam Town, Thanjavur District. The suit "B" schedule properties are the movable properties and "C" schedule property is again a land and house bearing Door No. 9 stated to have been located adjacent to the suit "A" schedule house.

4. It is the case of the plaintiff that the suit "A" schedule property was purchased by her father Thiru. Gopal in the name of her mother Tmt. G. Sulochana. It is further stated that the property was purchased for the benefit of the family. It is also the case of the plaintiff that her mother had no independent source of income to purchase the property in the year 1980 as she was only a house wife. It is further stated that the property was enjoyed as a joint family property of all the members. It is also stated in the plaint that the father of plaintiff was doing milk business apart from having a brass welding workshop. It is the case of the plaintiff that her mother Tmt. G. Sulochana died intestate on 08.01.1998 and that during the life time of her father, the plaintiff and her elder sister namely second defendant got married. It is also the case of the plaintiff that the first defendant, the elder brother of the plaintiff was looking after the properties and that he is living in the suit "A" schedule property along with his family and getting rent from the tenants after the life time of plaintiff's mother. Since the first defendant did not come forward to make proper partition, it is stated that the plaintiff issued a notice through her counsel on 05.07.2001 demanding partition.

5. The first defendant in the suit filed a written statement. However, it is stated that the said statement is also adopted by the second and fourth defendant even though defendants 2 and 4 are not signatories to the written statement. In the written statement of first defendant, he disputed the right of plaintiff to seek partition by stating that suit "A" schedule property was purchased in the name of his mother out of his own money. It is further stated that the father had no independent source of income to purchase the property. It is the specific case of the defendant that father was conducting only a welding workshop and he was earning only wages. It is also the case of the first defendant that his father incurred heavy loss in the said business.

6. The first defendant further stated that his mother voluntarily executed a Will in favour of the first defendant before her death and that the said Will was acted upon after the death of his mother. It is pertinent to mention that in the written statement of first defendant, it is specifically stated that the first defendant and other defendants are entitled to 1/5 share in the family house bearing Door No. 9 which is located in TS No. 1620. Since the said house is not included originally in the plaint, it was contended by the first defendant that the suit is not maintainable. Though the first defendant claimed exclusive title to the suit "A" schedule property, the suit was contested by the first defendant not only for himself but also for other defendants.

7. The trial Court dismissed the suit in entirety even though there was candid admission in the written statement with regard to the existence of "C" schedule house. Holding that the Will alleged to have been executed by the mother under Ex.B9 dated 17.11.1997 is proved in accordance with law, the trial Court dismissed the suit. The trial Court also rendered a finding that the first defe