JUDGMENT :

[PRAYER:- Second Appeal is filed under Section 100 of Civil Procedure Code, praying to set aside the Judgment and Decree passed by the Court of the Principal District Judge, Virudhunagar District at Srivillputhur in A.S.No.02 of 2012 on 30.10.2013 in reversing the well considered Judgment and Decree passed by the Court of the Subordinate Judge, Srivilliputhur in O.S.No.310 of 1996 on 30.09.2011 and allow this Second Appeal.

PRAYER:- Second Appeal is filed under Section 100 of Civil Procedure Code, praying to set aside the judgment and decree in A.S.No.2 of 2012 on the file of the Principal District Judge, Virudhunagar District at Srivillputhur dated 30.10.2013 reversing the judgement and decree in O.S.No.310 of 1996 on the file of the Sub Court, Srivilliputhur dated 30.09.2011.]

These Second Appeals are arising out of judgment and decree passed in A.S.No.2 of 2012 on the file of the Principal District Court, Virudhunagar District at Srivilliputhur reversing the decree for partition granted by the Trial Court in O.S.No.310 of 1996 on the file of Sub Court, Srivilliputhur.

2. The parties are referred in this judgment as per their ranking in Second Appeal in S.A.(MD).No.193 of 2016.

3. The Second Appeal in S.A.(MD).No.193 of 2016 is filed by the plaintiffs in the suit. The suit was filed for partition against the respondents. The suit was decreed by the Trial Court and the findings of the Trial Court were reversed by the First Appellate Court on appeal filed by the 1st respondent. Therefore, the plaintiffs have come up by way of this second appeal.

4. The Second Appeal in S.A.(MD).No.384 of 2014 is filed by 4th defendant in the suit aggrieved by the judgment and decree passed by the First Appellate Court upholding the Will pleaded by the 1st respondent.

Plaint Averments:

5. According to the appellants in S.A.(MD).No.193 of 2016/plaintiffs, the suit properties originally belonged to their father S. Viswasam Nadar. He died intestate on 28.10.1996 leaving behind his daughters, the appellants/plaintiffs and 3 sons, respondents/defendants 3, 2 and 4, apart from his wife, deceased 1st defendant in the suit. The appellants claimed that after the death of S. Viswasam Nadar, they had been possession and enjoyment of suit properties as co-owners along with the respondents. It was also alleged that though appellants requested for effecting partition by metes and bounds, the respondents evaded their request and hence, the appellants were constrained to file a suit for partition against the respondents and also their deceased mother claiming 6/18 share. Pending Suit, the mother of the parties viz., 1st defendant in the suit Maria Thangammal passed away and hence, after her death, appellants herein, claiming equal share along with the respondents, amended plaint seeking 3/6 share in the suit properties.

Averments found in Written Statement:

6. The 1st defendant in the suit viz., mother of the appellants and respondents filed a written statement wherein she claimed that S. Viswasam Nadar during his life time executed a Will on 26.08.1993 bequeathing suit properties to her and hence, she claimed absolute right over the suit properties and sought for dismissal of the suit.

7. The 2nd respondent/2nd defendant herein filed a written statement and claimed that S. Viswasam Nadar executed a Registered Will registered as Document No.56/93 on the file of Sub Registrar's Office, Eraniel in respect of his properties in Tamil Nadu and executed another Registered Will registered as Document No.76/95 on the file of Sub-Registry, Pattom, Tiruvanandapuram regarding his properties at Kerala including the plaint 1st Schedule Property and hence, plaintiffs have no right over the suit properties. It was further averred by him that he was not beneficiary under the Will executed by S. Viswasam Nadar and hence, he was not a necessary party to the suit as suit properties were not given him under those Wills.

8. The contesting 1st respondent/3rd defendant filed a writte