The Will must be proved in the manner known to law, and a purchaser from a co-owner can claim possession and seek partition without filing a separate suit.

JUDGMENT :

(Prayer: This Second Appeal is filed under Section 100 of Civil Procedure Code, against the Judgment and Decree dated 29.11.1999 made in A.S.No. 50 of 1992 on the file of the Court of the Subordinate Judge of Tindivanam and Judgment and Decree dated 19.03.1992 made in O.S.No. 947 of 1981 on the file of the District Munsif Court, Gingee.)

1. The first plaintiff in O.S.No. 947 of 1981 on the file of the District Munsif Court, Gingee is the appellant herein. There were two plaintiffs in the suit. They were the appellant herein and his mother Kuppammal, who is now shown as the fifth respondent in the Appeal. Kuppammal is the second wife of one Annamalai Gounder. He had already married one Dhanabakkiya Ammal and had two daughters, namely, Mangalalakshmi and Jeyalakshmi. They are not parties to the present Second Appeal or to O.S.No. 947 of 1981.

2. The said suit in O.S.No. 947 of 1981 had been filed by the two plaintiffs seeking declaration of title and injunction with respect to vacant land situated at Mukkulam Village, Gingee in Villupuram District in Nanjai S.No. 53/2, totally measuring 2.90 acres out of which 0.95 acres and 0.50 acres also claimed under a Will executed by his father.

3. Annamalai Gounder had two wives Dhanabakkiya Ammal and Kuppammal. The appellant is the son of Kuppammal. There were two other daughters, namely Mangalalakshmi and Jeyalakshmi, born through Dhanabakkiya Ammal.

4. The plaintiff filed O.S.No. 528 of 1978 before the District Munsif Court at Gingee seeking partition and separate possession of the total area of 2.90 acres in aforementioned survey number. The said suit had been filed against his father Annamalai Gounder.

5. Among the issues framed in that particular suit was that whether the plaintiff therein, who is the appellant herein was the legitimate son of Annamalai Gounder and whether he was entitled to partition and separate possession. After analysing the evidence adduced, the District Munsif held that the plaintiff is the legitimate son of the defendant Annamalai Gounder. He therefore granted the relief of partition of one half undivided share in the suit property which measured 2.90 acres. This would imply that the appellant herein / plaintiff in that particular suit was entitled to an undivided 1.45 acres.

6. It is admitted by the learned counsel for the appellant that final decree application has not been filed.

7. Thereafter, after the death of Annamalai Gounder, his first wife Dhanabakkiya Ammal and her daughter Jeyalakshmi had sold on 29.10.1981 1.00 acre within the aforementioned 2.95 acres to Velu Gounder. The leagal representatives of Velu Gounder are the respondent Nos. 1 to 4 herein.

8. Claiming that Velu Gounder was interfering with possession and holding that the said sale deed was a cloud over their title, the two plaintiffs A.Shanmugam and Kuppammal filed O.S.No. 947 of 1981 before the District Munsif at Gingee. That suit was dismissed by Judgment dated 19.03.1992. During the trial in that particular suit, Ex.A-1, the copy of the plaint in O.S.No. 528 of 1978 was marked.

9. The case of the plaintiffs in that particular suit was also that Annamalai Gounder had executed a registered Will on 03.12.1980 which was marked as Ex.A-2. If that will had been proved as provided under Section 68 of the Indian Evidence Act 1872, then the entire property would devolve on to the plaintiff. During the course of trial, the plaintiff examined himself as PW-1 and examined another witness Vedanta Gounder as PW-2. The defendant Velu Gounder examined himself as DW- 1. Thereafter, further evidence appear to have been taken and the plaintiff also examined one more witness Varadhan and the wife of Velu Gounder, Pownammal was also examined and apart from three other witness.

10. On analysis of the evidence adduced, the trial Court came to a specific finding that the Will, produced as Ex.A-2 had not been proved in accordance with Section 68 of the Indian Evidence Act, 1872. It was also found that the de