JUDGMENT :-

(Prayer: The Second Appeal is filed under Section 100 of C.P.C. against the judgment and decree dated 13.11.2008 in A.S.No.56 of 2007 on the file of the Principal District Court, Salem, confirming the judgment and decree dated 20.06.2007 in O.S.No.46 of 2005 on the file of the Sub Court, Mettur.)

1. This appeal is focused as against the judgment and decree dated 13.11.2008 passed in A.S.No.56 of 2007 by the learned Principal District Judge, Salem in confirming the judgment and decree dated 20.06.2007 passed in O.S.No.46 of 2005 by the learned Subordinate Judge, Mettur.

2. For the sake of convenience, hereinafter the parties are called as per their litigative status before the trial Court.

3. The laconic averments found in the plaint are as follows:

3.1. The suit properties originally belonged to one Nachiappa Gounder and he was in possession and enjoyment of the suit properties till his lifetime. The said Nachiappa Gounder had died leaving his only son Chellamuthu. Being the reason that the plaintiff is the daughter of Chellamuthu she is entitled to half share in the properties left out by her grandfather Nachiappa Gounder and the remaining half share will goes to her father. Her father had kept one Dhanabackiyam as a mistress and through her, the defendants were born. Hence, the defendants are illegitimate children born to Chellamuthu. The defendants may claim share in the half share of the property of their father along with the plaintiff and that she is entitled to 4/6th share and the remaining 2/6th share should go to the defendants. The plaintiff asked the defendants to divide the properties through mediators, but the defendants did not come forward to divide the properties and postponing the division of properties by giving some lame excuses.

4. The averments found in the written statement filed by the first defendant, which was adopted by the second defendant are as follows:

4.1. The suit properties originally belonged to Nachiappa Gounder and he had executed a Will dated 07.04.1993 in favour of the first defendant. The testator Nachiappa Gounder died on 15.11.1993 and after his demise, the Will came into force and the first defendant is enjoying the properties by changing the patta and therefore, the plaintiff cannot claim any right, title or interest over the properties as a legal heir of her father Chellamuthu Gounder. Chellamuthu had married the defendants’ mother after the death of his first wife and that their mother was not kept as mistress of Chellamuthu, and it was a lawful marriage between Chellamuthu and their mother. Out of his own volition and out of love and affection, the said Nachiappa Gounder had executed a Will in favour of the first defendant. Therefore, the plaintiff cannot file a suit for partition.

5. Based on the above averments, the trial Court framed necessary issues and tried the suit. On the side of the plaintiff, the plaintiff examined herself as P.W.1 and marked 14 documents as Exs.A1 to A14. Similarly, on the side of the defendants, the first defendant examined himself as D.W.1. He examined the attestors of the Will as D.W.2 and D.W.3 and one Society Staff as D.W.4, and marked 16 documents as Exs.B1 to B16. Apart from those documents Exs.X1 and X2 were marked.

6. Having considered the materials placed before him, the learned Subordinate Judge, Mettur came to the conclusion that the plaintiff is not entitled to the relief of partition and ultimately dismissed the suit.

7. Aggrieved over the same, the plaintiff filed an appeal in A.S.No.56 of 2007 before the Principal District Judge, Salem, wherein, the learned Principal District Judge, Salem, after elaborate enquiry, by judgment and decree dated 13.11.2008 confirmed the findings arrived at by the trial Court and dismissed the appeal. Feeling aggrieved over the same, the plaintiff is before this Court with the present second appeal.

8. At the time of admission, this Court had formulated the following substantial questions of law:

(1) Whe