JUDGMENT :

(S.S. Sundar, J.)

(Prayer : Appeal suit filed under Section 96 of CPC against the judgment and decree passed by the learned 3rd Additional District Judge, Salem in OS.No.150/2010 dated 30.08.2013.)

1. The unsuccessful plaintiffs in the suit in OS.No.150/2010 on the file of the III Additional District Court, Salem are the appellants in the above appeal.

2. Brief facts that are necessary for the disposal of this appeal are as follows:-

(a) The appellants filed the suit in OS.No.150/2010 for partition of their 5/9th shares in all the suit properties and for consequential reliefs.

(b)The appellants are the sons and daughters of one Thiru. Periyapaiya Gounder [hereinafter referred to as ''Thiru.PPG] through his third wife by name Lakshmiammal. Defendants 1 to 4 are also the sons and daughters of Thiru.PPG through his second wife by name Palaniammal.

(c) It is admitted that the suit properties are the absolute properties of one Nallammal who is the first wife of Thiru.PPG. The said Nallammal purchased the suit properties under various documents and it is admitted before the Trial court and before this Court that the suit properties were the absolute properties of the said Nallammal.

(d) It is the case of the plaintiffs that the said Nallammal after selling some of the properties acquired by her to third parties, executed five Wills in favour of the plaintiffs bequeathing a few properties to each of them on 10.06.1999. It is also stated by the plaintiffs/appellants that the said Wills were executed in their favour out of love and affection and that the said Wills were acted upon. The husband of Nallammal, namely, Thiru.PPG predeceased his wife and he died in the year 1984. It is stated that Smt.Nallammal also died on 13.06.1999 leaving behind the suit properties.

(e) Stating that plaintiffs and defendants 1 to 4 are the legal heirs of Smt.Nallammal, it is contended by the plaintiffs that they are entitled to 5/9th shares. The 5th defendant in the suit is admittedly a tenant in respect of first item of suit property and it is contended by the plaintiffs that the 5th defendant is paying a monthly rent of Rs.8,000/- and that the plaintiffs are also entitled to the rent and other income from all the properties.

(f) The suit properties consists of four items. Even though the first item is shown as agricultural land measuring an extent of 1.36 acres, it is stated in the course of trial that an extent of 36 cents had already been sold by Smt.Nallammal.

(g)The suit was contested by the 1st defendant by filing a detailed written statement and the said written statement was adopted by the other defendants, namely, defendants 2 to 4. Defendants 1 to 4 admitted that Tmt.Nallammal acquired all the suit properties and that the properties belonged to her absolutely. However, it is stated by defendants 1 to 4 that the said Nallammal bequeathed the suit properties in favour of 1st defendant / 1st respondent herein, by way of a registered Will dated 17.10.1988 in the presence of witnesses. Since Tmt.Nallammal subsequently bequeathed some of her properties to plaintiffs/appellants by separate Wills, it is contended that the Will in favour of defendants 1 to 4 which was executed on 17.10.1988 is a valid one and is binding on all parties.

(h) In the written statement, it is further stated that defendants 1 to 4 are running a Touring Talkies in the first item measuring 1.36 acres and the said property absolutely belonged to the 1st defendant and that the rental income from the said property is being received only by the 1st defendant as the owner of the same. Defendants 1 to 4 also contended that one of the property in the first item of the suit properties measuring an extent of 21 cents was sold by the 1st defendant and possession is with the purchasers.

(i) The Trial Court, on the admitted facts held that the properties are the properties of Tmt.Nallammal and the Wills executed by Tmt.Nallammal in favour of plaintiffs as well as defendants 1 t