Judgment The Second Appeal in S.A.(MD)No.743 of 2013 arises against the judgment and decree passed in A.S.No.49 of 2011, on the file of I Additional District Court, Tirunelveli, confirming the judgment and decree passed in O.S.No.95 of 2005, on the file of the Additional Subordinate Court, Tenkasi. The plaintiffs are the appellants and the respondents were the defendants in the suit. The plaintiffs filed the suit in O.S.No.95 of 2005 for partition and separate possession. 2. The Second Appeal in S.A.(MD)No.746 of 2013 arises against the judgment and decree passed in A.S.No.56 of 2011, on the file of I Additional District Court, Tirunelveli, confirming the judgment and decree passed in O.S.No.88 of 2004, on the file of the Additional Subordinate Court, Tenkasi. The defendants are the appellants and the respondents were the plaintiffs in the suit. The plaintiffs filed the suit in O.S.No.88 of 2004 for declaration, injunction, arrears of rent and for recovery of possession. 3. Since the dispute involved in both the appeals are common, by consent of both the learned Counsel appearing on either side, both the Second Appeals are disposed of by this common judgment. 4. The brief case of the plaintiffs in O.S.No.88 of 2004 is as follows: According to the plaintiffs, the first schedule of the suit properties originally belonged to Subbiah. He died 50 years ago leaving behind Thangaiah, Thangaveli Ammal, Puthiyal and Irulammal and his wife Ramu Ammal as his legal heirs. Ramu ammal died in the year 1999. The plaintiffs are the legal heirs of Thangaiah, who died on 01.03.2002. After the death of Subbiah, his legal heirs entered into a family arrangement on 31.08.1968 in respect of second schedule of property. The first schedule of properties were allotted to Thangaiah, the husband of the first plaintiff and the father of the plaintiffs 2 to 5. After the death of Thangaiah, the plaintiffs are enjoying the first schedule of properties as the legal heirs, ousting the defendants 1 to 4. The defendants had no right over the first schedule of the properties. (ii) The third schedule of the properties originally belonged to Ramu Ammal and during her life time, she executed a registered Will dated 24.03.1997 in respect of the third schedule properties. After the death of Ramu Ammal, the Will came into effect. The defendants had no right over the first schedule of the properties. (ii) The third schedule of the properties originally belonged to Ramu Ammal and during her life time, she executed a registered Will dated 24.03.1997 in respect of the third schedule properties. After the death of Ramu Ammal, the Will came into effect. As per the Will, the plaintiffs 3, 5, Subbiah, the brother of the plaintiffs 3 and 5 and the plaintiff are having entitlement over the said third schedule of properties. Subbiah, the brother of the plaintiffs 3 and 5 went out of the house 12 years ago. As per the Will, the fourth defendant is entitled to the sixth item of fourth schedule properties. The plaintiffs 1, 3, 5 sold the first item of third schedule properties to Vellapandian. The fourth schedule of properties belonged to the plaintiffs 1, 3 and 5 absolutely. The other plaintiffs and the defendants are having no right over the fourth schedule of properties. The fifth schedule of property belonged to Thangaiah as self-acquired properties. The first defendant is the sister of Thangaiah. She is residing in the fifth schedule of property as a tenant for a rent of Rs.100/- per month. After the death of Thangaiah, the first defendant failed to pay the rent regularly. Hence there is arrears of rent for more than Rs.2,500/-. The second defendant is the husband of the first defendant. The third defendant is the son of the defendants 1 and 2. In these circumstances, the plaintiffs have filed the suit. 5. The brief case of the defendants 1 to 4 in O.S.No.88 of 2004 is as follows: According to the defendants, the suit properties belonged to the ancestors of Ramu Ammal. Out of the income from the said properties, some properties have been purchased in the name of Ramu Ammal, Thangaiah, Plaintiffs 2 to 5 and Subbiah constituting a joint family. The fifth schedule of property is a joint family property. The plaintiffs are not entitled to any relief. 6. The brief case of the fifth defendant is as follows: According to the fifth defendant, the suit is not maintainable. The suit schedule 1, 4 and 5 properties belonged to the fifth defendant. 7. Before the trial Court on the side of the plaintiffs, two witnesses were examined and 18 documents Exs.A.1 to A.18 were marked. 6. The brief case of the fifth defendant is as follows: According to the fifth defendant, the suit is not maintainable. The suit schedule 1, 4 and 5 properties belonged to the fifth defendant. 7. Before the trial Court on the side of the plaintiffs, two witnesses were examined and 18 documents Exs.A.1 to A.18 were marked. On the side of the defendants, two witnesses were examined and 7 documents Exs.B.1 to B.7 were marked. The trial Court, after taking into consideration the oral and documentary evidences of both sides, decreed the suit. Aggrieved over the judgment and decree of the trial Court, the defendants 3, 4 and 6 preferred an appeal in A.S.No.56 of 2011 and the lower Appellate Court also confirmed the judgment and decree of the trial Court and dismissed the appeal. Aggrieved over the same, the defendants have filed the Second Appeal in S.A.(MD)No.746 of 2013. 8. The brief case of the plaintiffs in O.S.NO.95 of 2005 is as follows: According to the plaintiffs, the suit properties are Hindu joint family properties consisting the family members of the plaintiffs 1 and 2 and the defendants. The plaintiffs are sisters. The defendants 1 to 6 are the legal heirs of the deceased Thangaiah, who is the brother of the plaintiffs. The defendants 7 & 8 are the legal heirs of the deceased Ponnammal @ Iruliammal, who is the sister of the plaintiffs. (ii) The first and second items of the suit properties belonged to Uthiramadan, who died leaving his only son Puthiyan as his legal heir. The said Puthiyan enjoyed the first and second items of the suit properties. Puthiyan purchased the item Nos.3 and 4 of the suit properties. The said Puthiyan performed the marriage of his son Lakshmanan and his daughter Iruliammal. Puthiyan died leaving behind Lakshmanan and Iruliammal as his legal heirs. The fifth item of the suit property was purchased in the name of Subbiah who is the legal heir of Lakshmanan. The sixth and seventh items of the properties were purchased in the name of Iruliammal for joint family. Iruliammal was having only one daughter by name Ramu Ammal. The plaintiffs 1 and 2 are the children of Ramu Ammal. The items 8 and 9 of the suit properties were purchased in the name of Ramu Ammal. The first defendant who is the sister of the seventh defendant got married with Thangaiah. Iruliammal was having only one daughter by name Ramu Ammal. The plaintiffs 1 and 2 are the children of Ramu Ammal. The items 8 and 9 of the suit properties were purchased in the name of Ramu Ammal. The first defendant who is the sister of the seventh defendant got married with Thangaiah. The defendants 2 to 6 are their children. The items 10 to 14 of the suit properties were purchased out of the income from the Hindu Joint family. The fifteenth item was purchased in the name of the defendants 2, 3 and 4, who were the minors at that time. (iii) According to the plaintiffs, the plaintiffs 1 and 2 are entitled to undivided 1/4th share; Thangaiah and the defendants 2 to 6 are entitled to undivided 1/4th share; the defendants 7 and 8 are entitled to undivided 1/4th share in the suit properties. Thangaiah died in the year 2002 leaving the defendants 1 to 6 as his legal heirs. Since there was some misunderstanding between the family members, the plaintiffs 1 and 2 requested the defendants to partition the suit properties. The defendants 1, 3 to 6 have filed the suit in O.S.No.88 of 2004 against the plaintiffs 1 and 2 and the husband and son of the first plaintiff for declaration and permanent injunction. During the pendency of the suit, the first plaintiff died on 22.03.2008 leaving behind her husband -third plaintiff and her daughters fourth and fifth plaintiffs as his legal heirs. Hence the plaintiffs 3 to 5 are entitled to 1/4th share of the first plaintiff. In these circumstances, the plaintiffs filed the suit for partition. 9. The brief case of the defendants 1 to 3 and 6 is as follows: According to the defendants, the suit is not maintainable. In their family arrangement dated 31.08.1968, the first item of second schedule was allotted to the share of the first plaintiff; the second item was allotted to the share of the second plaintiff; the third item was allotted to the share of Iruliammal; the fourth item was allotted to the share of said three persons commonly. Except the second schedule of properties, the remaining family properties viz., the entire first schedule properties was allotted to the share of Thangaiah, the brother of the plaintiffs. Except the second schedule of properties, the remaining family properties viz., the entire first schedule properties was allotted to the share of Thangaiah, the brother of the plaintiffs. On 31.08.968, Ramu Ammal, the mother of the plaintiffs and Thjangaiah, the brother of the plaintiffs have executed a gift deed in respect of the second schedule properties. After giving shares to the plaintiffs, the first schedule properties came to the share of Thangaiah. After the death of Thangaiah, the defendants 1 to 6 are entitled to the first schedule of properties as his legal heirs. Ramu Ammal executed a Will dated 24.03.1997. The properties mentioned in the Will are shown as third schedule in the plaint. (ii) After the death of Ramu Ammal, the Will came into existence and as per the said Will, in the third schedule of properties, items 1 to 5 were allotted to the defendants 1 to 4 and the sixth item was allotted to the second plaintiff. The first plaintiff knew about the details of the Will. The defendants 1 to 4 sold the third schedule of properties and the fourth item of the properties based on the Will. The fourth schedule of properties absolutely belonging to the defendants 1 to 4. The eleventh item house is self-acquired property of Late Thangaiah. The first plaintiff is residing in the house as a tenant. In these circumstances, the defendants prayed for dismissal of the suit. 10. The brief case of the fifth respondent is as follows: The suit is not maintainable. The plaint has not been filed with bonafide intention. The 18th item of properties are self-acquired properties of fifth defendant. In these circumstances, the defendant prayed for dismissal of the suit. 11. Before the trial Court on the side of the plaintiffs, P.W.1 was examined and 20 documents Exs.A.1 to A.20 were marked. On the side of the defendants, two witnesses were examined and 8 documents Exs.B.1 to B.8 were marked. After taking into consideration the oral and documentary evidences let in by both parties, the trial Court dismissed the suit. Aggrieved against the judgment and decree of the trial Court, the plaintiffs preferred an appeal in A.S.NO.49 of 2011 and the lower Appellate Court also confirmed the judgment and decree of the trial Court and dismissed the appeal. After taking into consideration the oral and documentary evidences let in by both parties, the trial Court dismissed the suit. Aggrieved against the judgment and decree of the trial Court, the plaintiffs preferred an appeal in A.S.NO.49 of 2011 and the lower Appellate Court also confirmed the judgment and decree of the trial Court and dismissed the appeal. Aggrieved over the judgments and decrees of the Courts below, the plaintiffs have filed the Second Appeal in S.A.(MD)No.743 of 2003. 12. Heard Mr. P. Ramasamy, learned Counsel appearing for the appellants and Mr. V. Meenakshi Sundaram, learned Counsel appearing for the respondents. 13. The appellants have raised the following Substantial Questions of Law in both the Second Appeals: “1. Whether the trial Court as well as the lower Appellate Court committed illegality in relying upon the Will (Ex.A.2) to come to the conclusion for dismissing the suit is a correct one? 2. Whether the trial Court as well as the lower Appellate Court committed illegality in not giving common judgment in both the suits as well as the suit property in both the suits and appeals are same are correct one? 3. Whether the trial Court as well as the lower Appellate Court entertained the suit in case of filing suit against the dead person even as per the pleadings of the plaint is a correct one? 4. Whether the trial Court in entertaining the plaint and awarded the relief when the prayer itself is asked against the dead person is a correct one? 5. Whether the suit is bad for non-joinder of necessary party against the defendant No.5 who is deemed to be dead as per the case of the plaintiff is legally sustainable? 6. Whether the judgment rendered in O.S.NO.95 of 2005 as well as O.S.No.88 of 2004 separately is legally sustainable when the issues in both the suits as well as in both the appeals are common in nature is correct one?” 14. The suit in O.S.No.88 of 2004 was filed by the respondents for declaration, for permanent injunction and for other reliefs. O.S.No.95 of 2005 was filed by the appellants for partition and separate possession. The suit in O.S.No.88 of 2004 was filed by the respondents for declaration, for permanent injunction and for other reliefs. O.S.No.95 of 2005 was filed by the appellants for partition and separate possession. The contention raised by the learned Counsel for the appellants was that the trial Court as well as the lower Appellate court should have tried both the suits and the appeals jointly cannot stand for the reason that the appellants have not taken any steps seeking for joint trial of both the suits. Therefore, the Courts below cannot be blamed for not trying both the suits or the appeals jointly. This argument was also advanced before the lower Appellate Court and the same was rightly rejected by the lower Appellate Court. When the parties themselves are not interested in going for joint trial, the contention now raised by the learned Counsel for the appellants is rejected. However since the dispute involved in both the suits are identical, both the Second Appeals are disposed of by this common judgment. 15. The gift deed dated 31.08.1968 was marked as Ex.A.1 in O.S.No.88 of 2004 and the Will dated 24.03.1997 was marked as Ex.A.2 in the said suit. However in O.S.No.95 of 2005, the said documents were not marked or any steps have been taken by the parties to send for those documents marked in O.S.No.88 of 2004. In O.S.No.88 of 2004, the Courts below elaborately considered Ex.A.1 – gift deed dated 31.08.1968 and Ex.A.2 – Will dated 24.03.1997. Pursuant to Ex.A.1-gift deed, the mutation of records were effected in respect of second schedule of properties by the daughters. This is evident from Ex.A.15, Exs.B.2 to B.7 documents. Under Ex.A.2-Will dated 24.03.1997 executed by Ramu Ammal, the third schedule of properties was bequeathed. In the said Will, it has been stated that the plaintiffs have executed a sale deed in respect of the first item of the properties in the third schedule of properties. Further it has been stated that the items 2 to 5 of the properties are in possession of the plaintiffs. The attestor of the Will was also examined as P.W.2. P.W.2 was very specific and categorical about the due execution of the Will and also the state of mind of the testator. Further it has been stated that the items 2 to 5 of the properties are in possession of the plaintiffs. The attestor of the Will was also examined as P.W.2. P.W.2 was very specific and categorical about the due execution of the Will and also the state of mind of the testator. Since the Will was proved as contemplated under Section 68 of the Indian Evidence Act, the Courts below have rightly come to the conclusion that Ex.A.2 is a true and genuine Will. Therefore, under Exs.A.1 and A.2 documents, the respondents/plaintiffs are the absolute owners of the suit properties. 16. Though the plaintiffs have stated that the brother of the plaintiffs 3 and 5 viz., Subbiah had left the house about 12 years back and that his whereabouts are not known to them and therefore, he should be presumed to be civilly dead was disputed by the defendants in their written statement. But the defendants have not taken any steps to give the details of the said Subbiah as to where he is living. Merely stating that the said Subbiah is alive is not sufficient to come to the conclusion that the said Subbiah is alive and that he was not made as a party. That apart the said Subbiah has been made as 5th defendant in the suit. In these circumstances, the contention of the appellants is rejected. 17. So far as the plea of non-joinder of necessary parties is concerned, the trial Court has rightly come to the conclusion that since the cause of action for the filing of the suit arose only as against the defendants, since they tried to interfere with the plaintiffs' possession, there is no necessity for impleading the other parties, as contended by the appellants. That apart, the legal heirs of the Irulammal had not disputed the rights of the plaintiffs. Such being the case, the Courts below have rightly come to the conclusion that the suit is not bad for non-joinder of necessary parties. In these circumstances the lower Appellate Court has rightly dismissed the appeals. 18. Therefore, I do not find any ground much less any substantial question of law to interfere with the concurrent findings of the Courts below. The Second Appeals are liable to be dismissed. Accordingly, the same are dismissed. However there shall be no order as to costs.