JUDGMENT

This Civil Miscellaneous Appeal is preferred by the plaintiffs in O.S.No.18 of 2004, on the file of the District Munsif Court, Shencottah, against the judgment passed by the Appellate Court setting aside the trial Court judgment and decree, allowing the application to receive additional document and remanding back to the trial Court with direction to frame additional issue and try the suit afresh.

2. The suit for partition was allowed by the trial Court and preliminary decree was passed declaring the plaintiffs, Tmt.Radha and Tmt.Saraswathi, are entitled for 10/72 share each in the suit schedule properties. The said judgment and decree, dated 25.03.2004, came to be challenged by Muthiah Vathiyar, the first defendant.

3. Pending Appeal, the said Muthiah Vathiyar died. Hence, his legal representatives were brought on record and others, who subsequently derived interest in the suit schedule property were also arrayed as respondents.

4. Before adverting to the merits of the arguments submitted by the learned counsels, regarding the circumstances under which the Appellate Court exercised its power of remand under Order XLI Rules 23, 23A and 25 of C.P.C. and the law governing partition of coparcenary property among the first class heirs of a Hindu male died intestate in view of the amendment of the Tamil Nadu Act 1 of 1990 to Hindu Succession Act, 1956, it is necessary to understand the factual background of this case. Hence, the facts are recapitulated in a nutshell as below.

(i) One Sami Vathiyar is the adopted son of Ilathur Nallakannu Vathiyar. In the year 1908, the suit schedule properties were conveyed to Sami Vathiyar through a deed and since then, he has been enjoying the same, succeeding Ilathur Nallakannu Vathiyar as his adopted son. The said Sami Vathiyar had one son, by name, Nallakannu Vathiyar and four daughters, namely, Muthammal, Unnamalai Ammal, Pichammal and Vadivu.

(ii) After the demise of the said Sami Vathiyar, his property was inherited by his sole son Nallakannu Vathiyar and was in his possession and enjoyment till his lifetime. The said Nallakannu Vathiyar died on 11.09.1975, leaving behind his wife namely, Janaki Ammal, three sons, who are the defendants 1 to 3 and six daughters, who are the plaintiffs 1 and 2 and the defendants 4 to 7.

(iii) In the plaint filed by two of the daughters of Nallakannu Vathiyar, it was alleged that the defendants 1 to 3, who are the sòns of Nallakannu Vathiyar, after the demise of Nallakannu Vathiyar, did not take care of their mother and sisters. The marriages of the plaintiffs and the defendants 6 and 7 were conducted by their mother Janaki Ammal at her expense. Though request was made to the defendants 1 to 3 to divide the joint family property and allot the respective shares in the land and building, the defendants 1 to 3 were evading to effect partition. Contrarily, the first defendant has sold the house and 1 ½ cents of land abutting to the house to the defendants 8 and 9 on 26.07.1999. The said sale is invalid and it was not alienated for the welfare of the family members enjoying the property jointly.

(iv) The defendants 1 and 3 claim that their father Nallakannu Vathiyar had executed a Will in their favour. This is untrue and even if it is so, the execution of the Will is surrounded with suspicion since Nallakannu Vathiyar was not keeping good health and mental state for about six months prior to his death. Hence, the voluntary execution of the alleged Will is doubtful.

(v) The first defendant, Muthiah Vathiyar, who is the first appellant in the first Appellate Court, in his written statement, has pleaded that the suit properties are self-acquired properties of Nallakannu Vathiyar, in respect of which, he has executed a Will, dated 23.08.1975 and got it registered. The said Will was executed in a good state of mind, voluntarily without any external influence. After the demise of Nallakannu Vathiyar on 11.09.1975, the Will has come into effect and acted upon. As per the