- (1.)APPEAL Suit (First APPEAL) against the judgment and decree dated 25.8.2006 in O.S.No.790 of 2004 on the file of the Additional District Court (Fast Track Court No.III), Coimbatore.
(2.)THE averments in the plaint are as follows:
(a) THE plaintiffs are the sisters of the defendants. THEy are the children of Palanisamy Konar and his wife Pongammal. THE said Palanisamy Konar and Pongammal are having four daughters and they are the plaintiffs and defendants 3 and 4 and the sons are defendants 1 and 2. (b) Palanisamy Konar died on 26.5.1982, and their mother Pongammal died on 16.1.1994. Both of them died intestate, leaving behind the plaintiffs and defendants as their heirs. After the death of Palanisamy Konar, defendants 1 and 2 were promising to give the share in the suit properties and they also used to give portion of the agricultural produce to the plaintiffs. (c) Defendants 1 and 2 cannot have any exclusive right, title or interest over the suit properties. THE plaintiffs' father purchased the properties under a registered sale deed dated 3.11.1958 and he acquired the properties by way of Partition Deed dated 18.10.1995. So, both the plaintiffs and defendants are entitled to equal share in 'A' and 'B' schedule properties. 'B' schedule properties are house properties and 'A' schedule properties are agricultural lands. (d) THE defendants 1 and 2 partitioned the properties as per the Partition Deed dated 18.10.1995. THE plaintiffs are not parties to the said Partition Deed and hence, the same is not valid and binding on them. (e) THE plaintiffs are entitled to share in the suit properties. Hence, they have come forward with the present suit for partition, claiming preliminary decree of 2/6 share in the suit properties and to appoint a Commissioner to divide the suit properties and to determine the mesne profits from the date of suit till the date of delivery of possession and for costs of the suit.

The gist and essence of the written statement filed by the first and second defendants are as follows:

(a) The plaintiffs have ceased to be the members of the family of Palanisamy Konar eversince their marriage, which took place long back. (b) At the time of filing the present suit, the first plaintiff was aged 39 years and was given in marriage in 1982, the second plaintiff aged 48 years, was given in marriage in 1971, the third defendant aged 50 years, was given in marriage in 1969 and the fourth defendant aged years, was given in marriage in 1973. (c) The defendants 1 and 2 are enjoying the properties for the period more than the statutory period. The landed properties were allotted to the defendants 1 and 2 under the Partition Deed dated 11.12.1985 between Muthukali Konar, son of Nagamuthu Konar, defendants 1 and 2 and Saravanamuthu Konar, S/o Nagamuthu Konar, which were sold by defendants 1 and 2 to third parties without any protest or objection either by the plaintiffs or defendants 3 and 4. (d) Portions of land in Survey Nos.350 and 351 of Vellalore Village, were acquired by the State Government under the provisions of Land Acquisition Act. The defendants 1 and 2 claimed compensation for the same and received. Neither the plaintiffs nor defendants 3 and 4 made any claim. (e) The schedule mentioned properties in the plaint, and other properties were acquired by the joint exertions of the father of the parties and his brothers, sometimes by one of them and sometimes by all of them. (f) When Palanisamy Konar was alive, he executed a Will on 15.4.1982 while he was in a sound and disposing state of mind and the Will was also registered. The plaintiffs and defendants 3 and 4 are fully aware of the execution of the Will. (g) Under the said Will, Palanisamy Konar bequeathed his entire properties including the suit properties absolutely in favour of defendants 1 and 2. Neither the plaintiffs, nor defendants 3 and 4, questioned the abovesaid Will. After a long time, they have now come forward with the false claim. (h) The defendants 1 and 2 are exclusively enjoying the properties bequeathed to them under the Will of their father, asserting title in themselves, openly and hostilely to all their sisters, and they thus have ousted the plaintiffs and defendants 3 and 4 from claiming any share in the suit properties and other properties. Then only, defendants 1 and 2 have divided the properties between themselves under the registered Partition Deed dated 18.10.1995. During that period, neither the plaintiffs nor defendants 3 and 4 raised any objection. (i) On 11.12.1985, there was a partition among the three brothers, namely Muthukali Konar, Palanisamy Konar and Saravanamuthu Konar and sons of Nagamuthu Konar and A schedule properties were allotted to Muthukali Konar, B schedule properties were allotted to defendants 1 and 2, and C schedule properties were allotted to Saravanamuthu Konar. and the said Partition Deed was accepted and acted upon. (j) On 29.7.1994, some of the properties held by Saravanamuthu Konar and defendants 1 and 2, were partitioned between them, in which A schedule properties were taken separate possession by Saravanamuthu Konar and B schedule properties were taken separate possession by defendants 1 and 2. On 18.10.1995, defendants 1 and 2 effected a partition between them in which item 1 in A schedule properties, 15 cents in S.F.No.351/1 and other lands in A schedule properties, and item 2, were allotted to the second defendant and in S.F.No.251/3 in item 1 of A schedule and 2 acres 15 cents in S.F.No.782/2 of Chettipalayam Village in item 2 of A schedule properties, were allotted to the first defendant. The first defendant was allotted the house bearing Door Nos.68 and 70-A along with adjacent vacant sites in the partition. (k) The averment that the father of the parties Palanisamy Konar died intestate, is false. The allegation that defendants 1 and 2 were all along promising to give the share in the suit properties and they also used to give portion of the agricultural produces to the plaintiffs, is false and incorrect. (l) There is no cause of action for the suit. The properties were not properly valued. The defendants 1 and 2 prayed for dismissal of the suit.

The sum and substance of the written statement filed by the fourth defendant are as follows:

The relationship between the parties are admitted. The third and fourth defendants and the plaintiffs, are not entitled to any share in the suit properties. All the daughters of Palanisamy Konar know about the Will executed by him on 15.4.1982, giving his properties only to his sons. The plaintiffs and defendants 3 and 4 all have been married long back with sufficient "Seers" and expenses. The daughters have no share in the properties. The third defendant does not claim any share in the suit properties. The suit is barred by limitation. No pre-suit notice has been issued. He prayed for dismissal of the suit.

(3.)THE trial Court, after considering the averments both in the plaint and in the written statement, and the arguments of the learned counsel for the appellants/D1 and D2 and the respondents 1 and 2/plaintiffs and the respondents 3 and 4/defendants 3 and 4 having been set ex-parte, framed two issues for consideration, and upon considering the oral evidence of P.W.1 and D.Ws.1 and 2 and the documentary evidence of Exs.A-1 to A-3 and Exs.B-1 to B-13, decreed the suit granting preliminary decree of partition, and holding that Ex.B-13 Will is not true and genuine document and disbelieving the evidence of D.W.2, the attestor of the Will, against which, the present First Appeal has been preferred by the appellants/D1 and D2, namely the sons of Palanisamy Konar.
After hearing the arguments of the learned counsel for the appellants/D1 and D2 and respondents 1 and 2/plaintiffs and respondents 3 and 4/defendants 3 and 4, though notice served, did not appear either in person or through counsel, this Court frames the following points for determination in this First Appeal:

(i) Whether the trial Court is correct in holding that Ex.B-13 Will is not true and genuine document ? (ii) Whether the trial Court is correct in granting preliminary decree of partition of 2/6 share in the suit properties ? and (iii) To what reliefs the appellants/defendants 1 and 2, are entitled to ?