Legal representatives can participate in partition suit proceedings without raising new defenses, emphasizing proper adherence to procedure under the Civil Procedure Code.

ORDER :

V. LAKSHMINARAYANAN, J.

1. This is a truly unfortunate case. The litigation has been languishing for the past 27 years and that too, at the level of trial. The parties have been litigating only on the peripheries without being in a position to find the result of the litigation.

2. For the sake of convenience, the parties will be referred to as per their rank in the suit.

3. This is a suit for partition. Originally, one Sornathal filed O.S.No.392 of 2006 on the file of Additional District Munsif, Tiruppur seeking for partition and separate possession. That suit was dismissed as withdrawn, constraining her sister one Subbathal to present this suit for the very same relief.

4. For the sake of ready understanding, the genealogical tree is given below.

5. The dispute relates to the properties that were left behind by Ramasamy Gounder. There is no dispute that Ramasamy Gounder had two sons and three daughters. The plaintiff, pleading that Ramasamy Gounder had died intestate and his wife having predeceased, the plaintiff and the defendants 1 to 4 have 1/6th share individually and defendants 5 and 6 are entitled to 1/6th share in common. Defendants 5 and 6 are the legal heirs of one Velusamy, deceased son of Ramasamy Gounder.

6. The plea of defendants 5 and 6 is that Ramasamy Gounder had executed a "WILL" in favour of Velusamy bequeathing all the properties that he possessed in favour of the said Velusamy. They added that Velusamy died in the year 1992 and even during his lifetime, on the strength of the "WILL", he had alienated the properties which are the subject matter of the suit in favour of several third parties. Defendants 2 to 4 viz., the siblings of the plaintiff had no objection for the suit being decreed as prayed for. In fact they filed a memo submitting to the decree. The first defendant Rasappa Gounder did not contest the suit and remained exparte. So too was the situation with respect to the defendants 2 to 4. They initially remained exparte. Thereafter the exparte decree was set aside and then they filed a memo stating that they are submitting to the decree. The contest was only at the instance of the defendants 5 and 6.

7. Issues were framed and the parties went for trial. As the relationship between the parties was admitted and since the "WILL" was projected by the defendants 5 and 6 to defeat the claim of the plaintiff, the learned trial Judge called upon the defendants 5 and 6 to depose first and thereafter directed the plaintiff to tender evidence. It is not in dispute that the said defendants tendered evidence by examining D.W.1 to D.W.4. Of whom, D.W.2 and D.W.3 are the attesting witnesses and D.W.4 is said to be a purchaser of the property. The defendants marked Exs.B1 to B17.

8. Having completed their side of evidence, it was now the turn of the plaintiff. The original plaintiff Subbathal entered the witness box and filed her proof affidavit. Thereafter, she went to meet her maker. Therefore, her evidence was eschewed. Her son Palanichamy deposed as P.W.1. Another person was also examined as P.W.2. The plaintiff's evidence were closed and the matter was posted for arguments.

9