JUDGMENT :

S.S. Sundar & P.B. Balaji, JJ.

Prayer:- Appeal Suit filed under Order 44 Rule 1 read with Section 96 of CPC against the decree and judgment passed in OS.No.169/2010 on the file of the learned Principal District Judge, Namakkal dated 26.04.2013.

1. Plaintiffs 2 and 3 in the suit in OS.No.169 of 2010 on the file of the Principal District Court, Namakkal District are the appellants herein.

2. The mother of the 1st appellant by name Smt. Boomathi filed the suit in OS.No.169 of 2010 for partition of her one half share in all the suit properties and for consequential reliefs, including the prayer for permanent injunction restraining the defendants from alienating or encumbering the suit properties in any manner till a partition by metes and bounds.

3. The suit properties consist of 12 items which are described with reference to survey number, extent etc. During the pendency of the suit, the sole plaintiff by name Smt. Boomathi died and the appellants were brought on record as legal representatives of the deceased plaintiff.

4. The genealogy showing the relationship between the parties is filed as Ex.A9 and it is necessary to refer to the relationship amongst the parties. The suit properties and other properties belonged to the grandfather of 1st plaintiff and 1st defendant by name Sri. Kaliyanna Gounder who died on 09.05.1998. His wife Tmt.Marayee predeceased him. Sri. Kaliyanna Gounder had three daughters, by name Nallammal, Perumayee and Rajammal and one son by name Rangasamy. All the four children of Sri. Kaliyanna Gounder died. It is admitted that the daughter of Nallammal, by name Rajammal was given in marriage to Rangasamy. The 1st plaintiff, by name Boomathi is the daughter of Rangasamy and Rajammal [daughter of Nallammal]. The 1st defendant is the brother of 1st plaintiff. 2nd and 3rd plaintiffs, the appellants herein, are the husband and son of the deceased plaintiff Boomathi.

5. It is the case of plaintiffs that Sri. Kaliyanna Gounder during his lifetime executed two separate Wills dated 04.10.1991, one in favour of his daughter Rajammal and another in favour of his grandson, the 1st defendant in respect of suit properties. It is stated further that Sri. Kaliyanna Gounder cancelled his previous Will dated 04.10.1991 executed in favour of the 1st defendant by a subsequent Will dated 07.03.1997 and bequeathed the properties once again in favour of 1st plaintiff and 1st defendant jointly. It is specifically mentioned that the Will executed in favour of daughter of Sri. Kaliyanna Gounder by name Rajammal is not cancelled by testator. The plaintiffs further contended that since the Will executed by Sri. Kaliyanna Gounder in favour of the 1st plaintiff and 1st defendant on 07.03.1997 is the last Will and testament of deceased Sri. Kaliyanna Gounder, the suit properties are the absolute properties of the 1st plaintiff and 1st defendant. As pointed out earlier, the 1st plaintiff died on 16.09.2011 and hence, the appellants were impleaded as plaintiffs 2 and 3 being the husband and son of the deceased 1st plaintiff. Stating that the 1st plaintiff and 1st defendant are the only legatees under the Will dated 07.03.1997, the plaintiffs came forward with the suit for partition of their one half share in all the suit properties.

6. It is admitted that the 1st defendant sold the suit properties in favour of defendants 2 to 6. In the written statement filed by the 1st defendant, it is stated that the alleged Will stated to have been executed by Sri. Kaliyanna Gounder on 07.03.1997 is a false and a fabricated document. It is contended by the 1st defendant that the registered Will dated 04.10.1991 executed in favour of the 1st defendant is the only and the last Will executed by Sri Kaliyanna Gounder before his death. In the written statement, the 1st defendant referring to the strained relationship between Sri Kaliyanna Gounder and the 1st plaintiff, which led to the filing of a suit by Sri Kaliyanna Gounder in OS.No.172 of 1992, the 1st