The main legal point established in the judgment is the validity of the partition deed and the proof of the Will, which determined the entitlement to share in the properties.

JUDGMENT

(Prayer: This Second Appeal is filed under Section 100 of Civil Procedure Code, against the Judgment and Decree dated 03.01.2001 in A.S.No. 165 of 1996 and also in the Cross Appeal on the file of Principal District Court, Coimbatore, confirming and modifying the share in Cross Appeal the Judgment and Decree dated 13.09.1996 in O.S.No. 397 of 1987 on the file of III Additional Sub-Judge, Coimbatore.)

1.The plaintiffs in O.S.No. 397 of 1987 on the file of the third Additional Sub Court at Coimbatore are the appellants herein.

2. O.S.No. 397 of 1987 had been filed by the plaintiffs Satish Kumar and Suresh Kumar against their paternal grand uncle Krishnaswamy Gounder and his son Sreerangaraj and also against their father, A.Rangasamy and also against their paternal uncle A.Rajagopal, seeking partition and separate possession of 5/9th share with respect to the properties given in schedule 'A' to the plaint or with respect to the properties given in schedule 'B' to the plaint and for consequential reliefs of accounts and costs.

3. By Judgment dated 13.09.1996, the suit was partly decreed by holding that the plaintiffs are entitled to an undivided 1/6th share in the properties described in the 'B' schedule to the plaint.

4. Aggrieved by that Judgment, the plaintiffs filed A.S.No. 165 of 1996 before the Principal District Court at Coimbatore. The fourth defendant, A.Rajagopal filed a Cross Appeal in the said Appeal Suit. The first and second defendants filed I.A.No. 787 of 2000 in the Appeal suit under Order 41 Rule 27 Civil Procedure Code to bring on record a further document as additional evidence.

5. By Judgment dated 03.01.2001, the learned Principal District Judge dismissed the Appeal suit and allowed the Cross Appeal and confirmed the Judgment of the Lower Court by modifying the shares of the plaintiffs to 6/18th share in the 'B' schedule properties. The relief of accounting was rejected. The Interlocutory Application filed under Order 41 Rule 27 was allowed and the document was taken on record.

6. Questioning that Judgment, the plaintiffs had filed the present Second Appeal. The Second Appeal had been admitted on the following substantial questions of law:-

“1. Whether the Lower Appellate Court is correct in law in holding that Ex.A.16 Will has not been proved in accordance with law especially when the 4th defendant has not produced any materials to show that execution of the Will was surrounded by suspicious circumstances which have not been properly explained?;

2. Is it not necessary for the party disputing the execution of the Will to plead and prove rove existence of suspicious circumstances surrounding the execution of the Will and in the absence of such plea and proof whether the lower Appellate court is correct in law in making a special plea for the 4th defendant and holding against the Will?;

3. Having held the earlier suits between the parties would not constitute res judicata whether the Lower Appellate Court is correct in law that the plaintiffs are estopped from disputing the Ex.B-1 partition and the earlier consent decree to which the plaintiffs are not parties.”

7. Pending the Second Appeal, the first respondent / first defendant Krishnaswamy Gounder died. His son was already on record as the second respondent. His daughter was impleaded as the fifth respondent. The fourth respondent / fourth defendant also died and his legal representatives were brought on record as sixth and seventh respondents.

O.S.No. 397 of 1987 [ Sub Court, Coimbatore]:

8. It had been stated in the plaint that the suit properties originally belonged to Kangae Gounder, who had two sons, Chikkai Gounder and Senna Gounder. It was stated that the father and the two brothers were divided in the year 1924. Chikkai Gounder had a son Ayyasamy Gounder. Senna Gounder had a son Krishnaswamy Gounder, the first defendant. It was sated that Ayyasamy Gounder and Krishnaswamy Gounder lived separately and there was no jointness in their holdings ove