O R D E R

This Civil Revision Petition has been filed against the Fair and final order dated 16.09.2017 passed in I.A.No.640 of 2016 in O.S.No.503 of

2014 on the file of IV Addl. District and Sessions Judge, Coimbatore. 2. For the sake of convenience, the parties are referred as per the ranking in the suit.

3. The petitioners herein are the Defendants in the suit in O.S.No.503 of 2014, which was filed by the respondents/plaintiffs for the relief of partition in respect of suit properties claiming that the properties are ancestral properties belong to their father Ganapathy Gounder, who died intestate on 27.12.2011 leaving behind his wife Sundaramal, plaintiffs and defendants as his legal heirs. But, the defendants denied the plaintiffs claim stating that during the life time, the said Ganapathy Gounder executed a registered Will on 21.03.2002 bequeathing the properties in favour of 3rd defendant. After filing of the written statement, on the side of plaintiffs, an application in I.A.No. 640 of 2016 under Order 18 Rule 1 of C.P.C. was filed praying to direct the 3rd defendant to begin the trial as he claimed right over the property based on the Will. The said application was contested by the defendants stating that as the plaintiffs not admitted the Will, they cannot be entitled to direct the the 3rd defendant to begin the trial, on the other hand, they came to the court for the relief of partition stating that the properties are ancestral properties. So, the initial burden is on them to prove the same. Considering the objections, the trial court held that as the 3rd defendant solely claimed right over the entire property including the other legal heirs by virtue of Will, he is bound to prove the Will in the manner known to law. Accordingly, the petition was allowed. Aggrieved over the same, the defendants preferred this Civil Revision Petition.

4. The learned counsel appearing for the defendants submitted that after framing issues, the plaintiffs filed this application to begin the trial by the 3rd defendant, as such, it is highly belated one and the same was not properly appreciated by the trial court.

5. Today, when the matter taken up for hearing, there is no representation on the side of respondents. On perusal of records, the suit was filed in the year of 2014 between brothers and sisters for the relief of partition. The 3rd defendant claimed right over the properties based upon the Will said to be executed by his father Ganapathy Gounder. Admittedly, as per the alleged Will, entire suit properties are said to be registered in favour of 3rd defendant. So, if the Will is proved, the relief claimed by the plaintiffs as such seems to be not maintainable in law under Order 18 Rule 1 of C.P.C., which is extracted hereunder :-

“Order XVIII Rule 1 . Right to begin— The plaintiff has the right to begin unless the defendant admits the facts alleged by the plaintiff and contends that either in point of law or on some additional facts alleged by the defendant the plaintiff is not entitled to any part of the relief which he seeks, in which case the defendant has the right to begin."

Now, coming to the facts of the present case, the entire properties are claimed by the 3rd defendant based upon a Will said to be executed by his father Ganapathy Gounder. If the Will is proved, the right of partition claimed by the plaintiffs could not be sustainable in law. So, the petition filed by the plaintiffs as such is maintainable in law. Accordingly, the findings rendered by the trial judge also maintainable in law. Therefore, the objections raised by the defendants is unsustainable one.

6. In the result, this Civil Revision Petition is disposed of. However, the trial court is directed to dispose the matter within a period of three months from the date of receipt of copy of this order and the 3rd defendant is directed to begin the trial. No costs. Consequently, the connected Civil Miscellaneous Petitions are closed.

05.09.2022 rpp To IV Addl. District