Judgment 1. The 4th defendant Rani in the original suit is the appellant in the present appeal. The plaintiffs in the original suit are the respondents 1 to 3. One Gnanambal, who figured as the first defendant is no more. Defendants 2, 3 and 5 to 9 are the respondents 4 to 10 in the appeal. 2. For the sake of convenience and for easy reference, the parties are referred to in accordance with their ranking in the original suit and in appropriate places wherever it is necessary their rankings in the first appeal shall also be furnished. 3. The respondents 1 to 3 herein filed O.S.No.13/2004 on the file of the trial court for partition and separate possession claiming 1/7th share in the suit properties to each one of the respondents 1 to 3/plaintiffs 1 to 3. The suit was filed based on the plaint averment that the suit properties belonged to Palanivelu, son of Kuppusamy and he died on 01.09.1997 leaving a registered Will dated 24.08.1997 as his last Will and testament; that by the execution of the said Will, Palanivelu revoked an earlier Will dated 06.03.1992, which according to the respondents 1 to 3/plaintiffs 1 to 3 was obtained by the appellant herein/4th defendant by exercising undue influence and prevailing upon Palanivelu was revoked by a will dated 07.02.1993; that the said will dated 07.02.1993 was again superseded by a subsequent will dated 02.01.1995; that the said will was also revoked by the last Will and testament of Palanivelu dated 24.08.1997; that as per the said last will dated 24.08.1997, his entire properties were bequeathed on all his seven daughters (plaintiffs 1 to 3 and defendants 1 to 4) in equal shares; that their request for partition in accordance with the terms of the Will was not conceded by the defendants, especially the 4th defendant/appellant herein and that hence they were constrained to file the suit for partition. 4. Defendants 1, 2 and 5 to 9 remained ex-parte. The third defendant Dhamayanthi and the 4th defendant Rani (appellant herein) alone contested the suit by filing written statements. The 3rd defendant Dhamayanthi denied the plaint averments and especially the averment that the Will dated 24.08.1997 was the last will and testament of Palanivelu. 4. Defendants 1, 2 and 5 to 9 remained ex-parte. The third defendant Dhamayanthi and the 4th defendant Rani (appellant herein) alone contested the suit by filing written statements. The 3rd defendant Dhamayanthi denied the plaint averments and especially the averment that the Will dated 24.08.1997 was the last will and testament of Palanivelu. She also denied and disputed the plaint averments regarding the alleged undue influence exercised by the appellant herein/4th defendant (Rani) to bring about the Will dated 06.03.1992 and the further averment that when all the daughters of Palanivelu objected to the same, Palanivelu revoked the said will dated 06.03.1992. The third defendant Dhamayanthi and the 4th defendant Rani (appellant herein) took a plea that no such wills dated 07.02.1993 and 02.01.1995 came to be executed. The 4th defendant (Rani)/the appellant herein took a further plea that even during the lifetime of C.K. Palanivelu, he repudiated the said will alleged to have been executed by him on 07.02.1993 and the same was the reason for his filing the above said suit for injunction against his other daughters. They also contended that the will dated 24.08.1997 propounded by the plaintiffs as the last will and testament of Palanivelu was not genuine. The third defendant contended further in her written statement that out of the suit properties, a terraced house bearing old door No.41C (new door No.1/57) had been in possession and enjoyment of her husband ever since 1975; that the land measuring five cents was orally sold by Palanivelu to Arunachalam, the husband of the third defendant Dhamayanthi on payment of Rs.3,000/- as consideration, with an assurance that, if it would be necessary, proper sale deed would be executed by him; that pursuant to the same, the husband of the third defendant constructed a house in the vacant site spending a sum of Rs.60,000/- in the year 1975 and that they are in possession and enjoyment of the same thereafter by paying the house tax to the said property to the panchayat and obtaining electric service connection in the name of the husband of the third defendant. Except the plea that the said house bearing Door No.41-C was constructed by her husband and that the land had been orally conveyed to her husband, the third defendant supported the defence case of the appellant herein/4th defendant in all other respects including the plea that the will dated 24.08.1997 was not a valid one and that the will dated 06.03.1992 alone was the last will and testament left by their father, deceased C.K. Palanivelu. In fact, she claimed title to a portion of the house bearing door No.41-C under the will dated 06.03.1992 alone. 5. It was contended by the appellant herein/4th defendant (Rani) that, besides the execution of the Will dated 06.03.1992 by her father on his own volition, in which a portion of the terraced house bearing door No.41C, which is claimed by the third defendant was bequeathed to her (3rd defendant) and rest of the properties were bequeathed in favour of the 4th defendant/appellant. It was also her contention that since the other daughters of C.K. Palanivelu, attempted to interfere with his peaceful possession he had to file a suit against the plaintiffs and other defendants in the Sub Court of Chidambaram for permanent injunction, which was later on numbered as O.S. No. 1191/1995 on being transferred to the file of the District Munsif, Chidambaram and that he had also obtained an order of interim injunction against the plaintiffs and other defendants in the present suit. 6. Based on the pleadings, the learned trial judge framed as many as nine issues, which are as follows: "1. Is it true that deceased Palanivelu executed a will on 24.08.1997 in a sound disposing state of mind after revoking the previous will dated 07.02.1993? 2. Whether the will dated 06.03.1992 was a forged one? 3. Is it true that the husband of the third defendant paid a sum of Rs.3,000/- to the deceased Palanivelu on 06.02.1974 for purchasing the house site? 4. Is it true that the terraced building bearing door No.41C was given to the third defendant through the will dated 06.03.1992? 5. Is it true that the husband of the third defendant constructed a terraced house by incurring expenditure? 6. Is it true that the suit item No.2, monies and valuable articles were given to the 4th defendant through the will dated 06.03.1992? 7. 5. Is it true that the husband of the third defendant constructed a terraced house by incurring expenditure? 6. Is it true that the suit item No.2, monies and valuable articles were given to the 4th defendant through the will dated 06.03.1992? 7. Is it true that the will dated 24.08.1997 was falsely created as alleged in the written statement? 8. Whether the plaintiffs are entitled to get share as prayed for? 9. To what relief?" 7. Three witnesses were examined as PWs.1 to 3 and six documents were marked as Exs.A1 to A6 on the side of the plaintiffs (respondents 1 to 3 herein). Six witnesses were examined as DWs.1 to 6 and 55 documents were marked as Exs.B1 to B55 on the side of the contesting defendants. One Tharageswari was examined as court witness No.1 and seven documents were marked as court documents - Exs.C1 to C7. 8. The learned trial judge, after hearing the arguments, considered the evidence and accepted the contention of the plaintiffs (respondents 1 to 3) in part sustaining their case regarding the genuineness of the will dated 24.08.1997, which was marked as Ex.A1 before the trial court. However, the learned trial judge held that the third defendant Dhamayanthi had acquired title by adverse possession in respect of the terraced house bearing door No.41-C and dismissed the suit in part in respect of the said property alone. In respect of the rest of the properties, the trial court granted the relief of partition and passed a preliminary decree for partition as prayed for holding each one of the plaintiffs to be entitled to 1/7th share. 9. As against the said judgment and preliminary decree of the trial court dated 23.08.2005, the present appeal has been filed by Rani (4th defendant) on various grounds set out in the memorandum of grounds of appeal. 10. The arguments advanced by Mr. R. Parthasarathy, learned senior counsel appearing for Mr. R. Srinivas, learned counsel on record for the appellant, by Mr. S. Premanand, learned counsel appearing for the respondents 1 to 3, 6, 7 and 10, by Mr. Srinath Sridevan, learned counsel appearing for the 5th respondent and by Mr. V. Ayyathurai, learned counsel appearing for Mr. Vedantham Srinivasan, learned counsel on record for the respondents 8 and 9 were heard. The materials available on record were also perused. This court paid its anxious consideration to the same. Srinath Sridevan, learned counsel appearing for the 5th respondent and by Mr. V. Ayyathurai, learned counsel appearing for Mr. Vedantham Srinivasan, learned counsel on record for the respondents 8 and 9 were heard. The materials available on record were also perused. This court paid its anxious consideration to the same. 11. The points that arise for consideration in this appeal are: "1. Whether the will dated 24.08.1997 propounded by the respondents 1 to 3/plaintiffs stands proved in accordance with law? 2. Whether the will dated 06.03.1992 propounded by the appellant/4th defendant and the third defendant were proved in accordance with the law? 3. Whether the trial court's finding that the third defendant Dhamayanthi has perfected title by adverse possession in respect of terraced house bearing door No.41C is perverse? 4. Whether the preliminary decree for partition granted by the trial court can be sustained?" 12. The plaintiffs (respondents 1 to 3), the deceased first defendant Gnanambal, the defendants 2 and 3/respondents 4 and 5 and the 4th defendant Rani (appellant) are the daughters of late C.K. Palanivelu. C.K. Palanivelu did have a son by name Ramachandran, who predeceased him leaving behind him a widow and daughter. Defendants 5 to 9 are the legal heirs of deceased first defendant Gnanambal. The case of the appellant herein and the contesting respondents are uniform regarding the title of late C.K. Palanivelu in respect of the suit properties. Their contentions proceed on the assumption that late C.K. Palanivelu had absolute power of disposition over the suit properties. The same is the reason why the plaintiffs (respondents 1 to 3) claim that they are entitled to 1/7th share each in all the suit properties by virtue of the bequest made by late C.K. Palanivelu in his alleged last will and testament dated 24.08.1997. Similar is the case of the 4th defendant Rani (appellant herein) as well as the third defendant Dhamayanthi as they contend that the registered will dated 06.03.1992, a certified copy of which has been produced as Ex.B53, alone is the last will and testament of C.K. Palanivelu and that the third defendant (5th respondent) and the 4th defendant Rani (appellant herein) alone are entitled to the properties of C.K. Palanivelu as legatees under the will. 13. 13. It is the case of the third defendant Dhamayanthi that the terraced house bearing door No.41C was built by her husband with his own funds in a vacant site having an extent of five cents purchased by her father C.K. Palanivelu, for which purchase her husband provided a fund to the tune of Rs.3,000/-. It is her further contention that in consideration of the said amount paid by her husband, her father C.K. Palanivelu orally sold the site to her husband and her husband put up construction spending a sum of Rs.60,000/-. She has also contended that her father promised to execute a proper sale deed, if such execution would be needed. When one makes a claim based on title, then the necessary animus for establishing adverse possession shall be missing. Apart from making such a plea, no concrete evidence has been adduced to prove that she perfected adverse possession. If at all the third defendant Dhamayanthi claims to have perfected title by adverse possession, she could have stated who was the real owner and against whom her possession became adverse. Even though such an intention to possess the property adverse to the rightful owner can be presumed to be present in the initial stage, it is an admitted fact that in 1981 itself C.K. Palanivelu executed a will not only in respect of the other properties but also in respect of the said property bearing door No.41-C and the said will was later on revoked and a new will came to be executed on 06.03.1992, under which the said terraced house was bequeathed to the third defendant Dhamayanthi. More over the third defendant Dhamayanthi claims right to the said property based on the bequest made in the will dated 06.03.1992. As such, it shall be obvious that there was no unequivocal intention to possess the property adverse to her father. On the other hand, it remained only a permissive possession and the same was the reason why she conceded by accepting the will of her father. Therefore, the finding of the trial court that the third defendant Damayanthi had perfected title by adverse possession to the terraced house at Door No.41C cannot be sustained and the same deserves to be reversed. 14. As pointed out supra, the plaintiffs and the contesting defendants proceeded on the footing that the suit properties were the absolute properties of C.K. Palanivelu. 14. As pointed out supra, the plaintiffs and the contesting defendants proceeded on the footing that the suit properties were the absolute properties of C.K. Palanivelu. The plaintiff has propounded Ex.A1-will dated 24.08.1997 whereas the defendants 3 and 4 have claimed Ex.B53 will to be the last will and testament of C.K. Palanivelu. However, the fact remains that late C.K. Palanivelu had a son by name Ramachandran and he predeceased Palanivelu in the year 1996 leaving a widow and daughter behind him and that the widow and daughter of late Ramachandran filed a suit against Palanivelu claiming that the properties were the joint family properties. It is also an admitted fact that the suit was compromised and some of the properties were given to the widow and daughter of Ramachandran and the other properties remained with late C.K. Palanivelu. If at all the properties which remained in the hands of C.K. Palanivelu and the properties given to the widow and daughter of his predeceased son Ramachandran were the joint family properties of C.K. Palanivelu and his son Ramachandran, the daughters of C.K. Palanivelu would have become coparceners when Act 1 of 1990 Tamil Nadu Amendment to Hindu Succession Act came into force provided they remained unmarried on the cut-off date 25.03.1989. In such an event C.K. Palanivelu would not have the power of bequeathing the entire property by way of a will. In case the properties were separate properties of C.K. Palanivelu, then, in the absence of will, the widow and the daughter of his predeceased son would have together become entitled to an equal share as that of a daughter of C.K. Palanivelu. The mere fact that a few properties out of the absolute properties of Palanivelu had been given to the widow and daughter of the predeceased son of Palanivelu will not disentitle them from succeeding to the properties left by C.K. Palanivelu under the general rule of succession provided in Section 8 of the Hindu Succession Act, 1956. In such an eventuality, the right of the widow and daughter of Ramachandran would depend on the finding as to whether C.K. Palanivelu died intestate or died leaving a last will and testament. In such an eventuality, the right of the widow and daughter of Ramachandran would depend on the finding as to whether C.K. Palanivelu died intestate or died leaving a last will and testament. As such they are the persons, who are very much interested in disputing the will propounded by the appellant herein/4th defendant and by the third defendant Dhamayanthi dated 06.03.1992 and also the will dated 24.08.1997 propounded by the respondents 1 to 3/plaintiffs. As such in a case where a will is propounded by a party for establishing his/her right to the property, the other non-testamentary legal heirs, who would get a share in the event of the failure of the wills, are necessary parties. 15. Neither the plaintiffs nor the contesting defendants chose to make the widow and daughter of Ramachandran as parties to the suit, so that they would get a chance of disputing the will propounded by both sets of parties to the suit. In case the will is defeated, then the suit for partition shall be bad for non-joinder of necessary parties. In case the will is upheld, even then, the same shall not be the end of the litigation, as it shall be open to the widow and daughter of Ramachandran to challenge the same in a subsequent proceeding. Hence, in order to avoid multiplicity of proceedings also, it is not only proper, but also necessary to implead the widow and daughter of Ramachandran in the suit. When this aspect was brought to light, the learned counsel appearing for the contesting parties in the appeal, submitted that they were ready to take an order of remand so as to enable them to cure the defect by impleading the widow and daughter of Ramachandran, the predeceased son of C.K. Palanivelu. This court is also of the considered view that the presence of those persons are very much necessary for rendering a complete justice in this matter and that therefore the preliminary decree passed by the trial court is bound to be set aside and the suit shall be remitted back to the trial court for fresh disposal after affording an opportunity to the plaintiffs to implead the widow and daughter of the predeceased Ramachandran and permiting the parties to adduce further evidence. 16. 16. In view of the fact that necessary parties have not been impleaded, the question regarding the genuineness and validity of the will propounded by the plaintiff and the will propounded by the defendants 3 and 4 cannot be finally decided and the issues are left open to be decided after impleading the necessary parties. In the result, the Appeal Suit is allowed. The decree of the trial court dated 23.08.2005 made in O.S.No.13 of 2004 is set aside. However, the suit O.S.No.13 of 2004 is remitted back to the trial court for fresh disposal, after affording an opportunity to the plaintiffs to implead the widow and daughter of the deceased Ramachandran and permitting the parties to adduce further evidence. The appellant shall be entitled to the refund of court fee paid on the Appeal Suit as per Section 67 of the Tamil Nadu Court Fees and Suits Valuation Act, 1955. However, there shall be no order as to cost. Consequently, the connected miscellaneous petition is closed.