JUDGMENT

Challenge in this second appeal is made to the judgment and decree dated 03.04.2006 passed in AS No.6 0f 2005 on the file of the Additional Subordinate Court, Myladuthurai, modifying the judgment and decree dated 26.02.2004 passed in O.S. No.168 of 1997 on the file of the District Munsif Court, Sirkali.

2.For the sake of convenience, the parties are referred to as per their rankings in the trial court.

3. The first defendant in OS.No.168 of 1997 is the appellant in the Second Appeal. 4.Suit for partition.

5. Briefly stated, the case of the plaintiffs, in brief, is that the deceased first plaintiff is the brother of the defendant and the suit property belongs to the deceased first plaintiff's mother, namely, Rajammal, by way of the sale deed dated 30.11.1955, and Rajammal had three sons, namely, the deceased first plaintiff, Thairiyam and A. Edward, the first defendant. Rajammal's husband died long back and Rajammal died on 01.08.1976 leaving her three sons as her legal heirs. Thairiam died on 19.06.1997 without any issue. Hence, the deceased first plaintiff and the defendant become entitled to each 1/2 share in the suit property. The defendant is in the possession and enjoyment of the suit property on his behalf and on behalf of the deceased first plaintiff as co-owner. Hence, the deceased first plaintiff is deemed to be in the joint possession of the suit property. The defendant attempted to alienate the suit property without the consent of the deceased first plaintiff and hence the deceased first plaintiff issued a legal notice on 09.07.1997 calling upon the defendant to effect the partition and allot the due share to the deceased first plaintiff. The defendant, having received the notice, neither responded to the same nor complied with the demand made therein. During the pendency of the suit, the first plaintiff died and by virtue of the registered Will executed by him dated 27.11.1997 in favour of the second plaintiff, the second plaintiff has been added as a party in the suit. During the pendency of the suit, the second defendant got impleaded herself as a party in the proceeding and accordingly prays for the grant of relief claimed in the plaint.

6. The first defendant resisted the plaintiff's suit contending that the plaintiff's suit is not maintainable either in law or on facts and admitted that the suit property belongs to Rajammal by virtue of the sale deed as put forth in the plaint and also admitted that Rajammal's husband died long back and also further admitted that his brother Thairiyam had also died. According to the defendant, it is only Rajammal, who had brought up her children out of the income derived by her as mid-wife and the first plaintiff and the deceased brother Thairiyam, after securing employment severed their relationship with their mother, namely, Rajammal, and the defendant, and the first plaintiff was working in the police department at several places and therefore, the relationship between the first plaintiff and Rajammal was not cordial and it is only the defendant who has been looking after the mother Rajammal by providing her all the needs and Rajammal had bequeathed the suit property to the defendant by way of the Will and the Will had been written by Rajammal herself and it is a holograph Will and based on the Will, the defendant has renovated the existing superstructure in the suit property and put up the new construction and residing there with his family and therefore, the claim of the plaintiff that he is in the joint possession and enjoyment of the suit property is false. The first plaintiff had never resided in the suit property and cannot claim any share in the suit property and the plaintiff has no cause of action to lay the suit and the suit is liable to be dismissed.

7. The second defendant resisted the plaintiff's suit contending that the suit property originally belonged to Rajammal and she died leaving behind the first plaintiff, the first defendant and the husband of the