JUDGMENT :

These two appeals arise out of O.S.No.41 of 2005 and 40 of 2007 on the file of the Additional District Judge, Ramanathapuram. Since the dispute in both the suits related to the succession to the estate of late Palanichamy Thevar both the suits were tried together and disposed of by a common judgment dated 29.01.2010. The suit in O.S.No.41 of 2005 was filed by the defendants 1 to 4 in O.S.No.40 of 2007. The suit in O.S.No.40 of 2007 was filed by the second defendant in O.S.No.41 of 2005.

2. The case of the plaintiffs in O.S.No.41 of 2005 in brief is as follows:-

Some of the properties were ancestral properties of the deceased Palanichamy Thevar and certain other properties were acquired by the family in the name of other members as per the directions of the Palanichamy Thevar. The deceased Palanichamy Thevar had two wives by name Rakkammal and Dharmambal. The marriage between Palanichamy Thevar and Dharmambal is also admitted. The plaintiffs in O.S.No.41 of 2005 are the sons of Palanichamy Thever through his second wife Dharmambal. The 10th defendant is the daughter of Palanichamy Thevar through the second wife Dharmambal. The defendants 1 to 4 are the sons through the first wife Rakkammal who was arrayed as 5th defendant in the suit. The second wife Dharmambal is the 6th defendant. The defendants 7 to 9 are the daughters of Palanichamy Thevar through the first wife Rakkammal. The 11th defendant is the wife of the second defendant Balasubramanian. The defendants 12 to 14 are the tenants under the second defendant.

3. The plaintiffs would contend that the said Palanichamy Thevar, his two wives and the children born through both the wives were living under the same roof as a joint family of which, the deceased Palanichamy Thevar was the Kartha. Though certain properties were acquired in the names of individual members, they were always treated as properties of the joint family. When certain misunderstanding arose in the family during the year 1998, the deceased Palanichamy Thevar exercised his right as a Kartha of the Hindu joint Family to effect a partition between the members of the family. In exercise of such right, an oral partition was effected in and by which the suit properties that are subject matter of O.S.No.41 of 2005 were allotted to Palanichamy Thevar and the defendants 1 to 4 who were the sons through the first wife were allotted to various other items of properties.

4. According to the plaintiffs, all the parties accepted the said partition and were put in possession of their respective shares under the said partition. On 20.09.2000, the deceased Palanichamy Thevar had executed a registered document confirming the oral partition effected by him during the year 1999. The plaintiffs would further claim that the 11th item of suit properties allotted to Palanichamy Thevar was in his possession and he was in enjoyment of the same. While so, the said Palanichamy Thevar gifted item-11 of the suit properties to the plaintiffs 1 to 4 and the first defendant by a registered settlement deed dated 06.10.2004. It is also contended that the plaintiffs and the first defendant had accepted the settlement and have been in possession of the said property on and from the date of the said settlement. It is further claimed that the deceased Palanichamy Thevar while in a sound and disposing statement of mind had executed a registered will on 09.11.2004 in respect of items 1 to 10 of the suit properties to the plaintiffs and first defendant jointly. Ultimately, Palanichamy Thevar died on 15.11.2004 and as per the will, the plaintiffs and the first defendant became the owners of the suit item Nos.1 to 10. Though the first defendant had agreed to have the properties partitioned as per the will and the settlement deed executed by Palanichamy Thevar, he had been avoiding the same. The plaintiffs would further claim that the other defendants who have no shares or right in the suit properties subject matter of O.S.No.41 of 2005 which wer