Ancestral property claims in partition suits must include all co-owners, but absence of other relatives does not invalidate suit if they do not claim rights.

JUDGMENT :

R.VIJAYAKUMAR, J.

1. The defendants in O.S.No.31 of 2016 on the file of the Additional District Court, Paramakudi have preferred the present first appeal challenging the Preliminary decree for partition.

(A).Factual Matrix:

2.The plaintiff has contended that the suit schedule properties are the ancestral properties of Pandi Nadar and he had died interstate leaving behind his two sons namely Ponselvam and Saravanan and two daughters namely Ponvandu and Janatha. The plaintiff is the wife of the deceased Saravanan. According to the plaintiff, her husband had passed away on 20.05.2015 and the defendants are attempting to alienate the property treating it as their exclusive property. Hence the suit for partition.

3. The defendants had filed a written statement admitting the genealogy and ancestral character of the property in the hands of Pandi Nadar. However, the defendants contended that the properties located in Therkku Athankarai and Madathumedu which belongs to 10 families including Pandi Nadar has not been included. Therefore, the suit is bad for partial partition. According to the defendants, the other 9 family members have not been impleaded.

Therefore, the suit is bad for non-joinder of necessary parties.

4.The defendants have further contended that the plaintiff's husband has executed a Will on 12.01.2015 bequeathing his share in favour of his brother Ponselvam. Therefore, the plaintiff does not have any right over the suit schedule properties. It was further contended that they have spent huge amount for the medical treatment of Saravanan by pledging their jewels. The jewels that were given by the plaintiff to meet out the medical expenses have been handed over to her on 31.05.2016 through Panchayatdars. Hence, they prayed for dismissal of the suit.

5.On the side of the plaintiff, the plaintiff had examined herself as PW1 and marked Exs.A1 to A12 documents. On the side of the defendants, the second defendant has examined herself as DW1 and other witnesses were examined as DW1 to DW4. The defendants have marked Exs.B1 to B3 documents.

6.The trial Court after considering the submissions made on either side, had arrived at a finding that the suit is not bad for partial partition and therefore, there is no necessity to implead the other 9 families who are relatives of Pandi Nadar. The trial Court further found that Ex.B1 Will dated 12.01.2015 has not been proved in accordance with Section 63 of Indian Succession Act, 1925 .

7.Based upon the above said findings, the trial Court granted a preliminary decree for partition of 1/4^th share in favour of the plaintiff.

Challenging the said judgment and decree, the present first appeal has been preferred by the defendants.

(B).Submissions of the learned counsel appearing on either side:

8.The learned Senior Counsel appearing for the appellants relied upon the cross examination of DW1 and contended that the plaintiff has specifically admitted during her cross examination that certain properties belonging to her father-in-law are yet to be partitioned and they have not been included as suit schedule properties. Therefore, in view of the said categorical admission, the trial Court ought to have dismissed the suit for partial partition. When the other family members who are the co-owners of the other properties have not been impleaded, the suit is bad for non-joinder of necessary parties also.

9.The learned Senior Counsel, relying upon the deposition of DW4 who is the attestor of Ex.B1 Will, submitted that the attestor has categorically deposed about the execution of the Will. Therefore, there cannot be any doubt over th