N. SESHASAYEE, J.

1. The 3rd and 4th defendants in O.S.No.571 of 2004 on the file of III Additional District Court, Coimbatore, (It was originally laid as O.S.No.1600 of 1992 before Sub Court, Coimbatore before it was transferred to III Additional District Court) have preferred this appeal challenging the preliminary decree passed in a suit for partition. For the sake of convenience, parties would be referred to by their rank before the trial court.

2. The dispute is over four items of properties that stood in the name of a certain Rangasamy. The properties described in the 'A' and 'B' schedules in the plaint are house sites and residential buildings. 'C' and 'D' schedule properties go together; 'C' schedule is described as plot measuring 80 cents with building thereon, and 'D' schedule is a partnership firm which operated in the 'C' schedule property.

2.1 The properties in A, B and C schedules to the plaint were purchased respectively under Exts.B-1 and B-2 sale deeds, both dated 21.12.1940, Ext.B-3 dated 26.02.1946, and Ext.B9 dated 22.09.1959. All the properties were purchased in the name of Rangasamy. Rangasamy had four sons and two daughters, of who plaintiff Shanmugam was his elder son followed by Konappan (second defendant), Narayanasamy (third defendant/first appellant) and Lakshmanan (fourth defendant/second appellant). His two daughters are Sivagami (fifth defendant) and Saraswathi (sixth defendant).

3. The case of the plaintiff, supported by his brother Konappan, the second defendant, is that their father Rangasamy was running a butcher stall, that all the four sons contributed extensively to the business, that the entire properties belonged to the joint family, and sought partition of the suit properties. The suit was laid against Rangasamy and his three sons and two daughters. During the pendency of the suit, Rangasamy died on 11.11.1993. The plaintiff Shanmugam too has died, and his heirs were impleaded as additional plaintiffs 2 to 5.

4. Long after the death of Rangasamy, defendants 3 and 4, the appellants herein, have filed their written statement in which they propounded a registered Will, said to have been executed by Rangasamy on 12.10.1987. The will excluded both the plaintiff and the second defendant Konappan entirely. They also contended that the suit properties are the self acquired properties of Rangasamy.

5. Before the trial court, the third plaintiff, Mohanasundaram, the elder son of Shanmugam, has entered the witness box as P.W.1. Besides, the plaintiff also examined the fifth defendant Sivakami, (who chose not to contest the suit) as P.W.2. For the defendants 3 and 4, the third defendant examined himself as D.W.1 and produced the Will executed by Rangasamy. This Will was marked as Ext.B12. To prove the Will, the contesting defendants have examined Ramaswamy as P.W.2, who is one of the attestors of the Will. On evaluating the evidence, the trial Court has held :

That the suit properties are joint family properties and this could be gathered from Exts.B-10 and B-11, both of which are reply notices of the first defendant and defendants 3 and 4 issued respectively to the suit notice of the plaintiff, where they concede that the suit properties are joint family properties.

That Ext.B12, Will is not genuine, for:

The testator, in his reply notice (Ext.B-11) had not disclosed the Will. Nor had he filed a written statement disclosing it. Nor the contesting defendants 3 and 4 chose to disclose it in Ext.B-10, their reply notice.

That defendants 3 and 4, the joint legatees under Ext.B-12 Will, have collusively laid O.S.117/1997 against each other, resting the cause of action on the Will, taints the Will with suspicion.

In Ext.B-10 notice, defendants 3 and 4 have made a joint statement that their father Rangasamy's vision was affected and that he was affected physically, but in his testimony D.W.1 had deposed that Rangasamy's had perfect vision, and this raises just doubt about Rangasamy's health status.

D.W.1 w