JUDGMENT : Sathish Ninan, J. 1. All the three proceedings are by the first defendant in a suit for partition. AS 7/1999 is challenging the preliminary decree in a suit for partition. The C.M.A. and C.R.P. arise from the order refusing to condone the delay and to restore a suit for partition filed by the first defendant as petitioner, with regard to various items of properties. 2. The plaintiff had a sister named Beepathumma. The first defendant is the husband of Beepathumma. They had no issues. The first defendant contracted a second marriage in which there are two children. 3. The properties sought to be partitioned are described in plaint item Nos.1 to 5. The details with regard to each item viz. the title deed and the persons in whose name the documents stand are given hereunder in a table form for easy understanding :- Item No. Title deed In whose name the document stands 1 Ext.A5 Plaintiff, Beepathumma, first defendant and defendants 5 to 15 2 Ext.A1 Beepathumma and first defendant 3 Ext.A4 Beepathumma 4 Ext.A2 Beepathumma and first defendant 5 Ext.A3 Plaintiff and Beepathumma With regard to plaint item No.1 the plaintiff surrendered her rights in faovur of Beepathumma under document No.1668 dated 23.07.1986. On the death of Beepathumma her share devolves on the plaintiff as a legal heir. With regard to item Nos.2 and 4 the claim is that the first defendant is only a benamidar and has no title to the property. The title over the said items vests with Beepathumma. The plaintiff claims the right as a legal heir of Beepathumma which devolved on her from plaint items 2 and 4. Regarding item No.3 there is no dispute on the partibility. With regard to plaint item No.5, the plaintiff claims right as a joint owner along with Beepathumma and also with regard to the share devolved on her as a legal heir of Beepathumma. 4. The first defendant, while denying the plaint averments also contended that the plaintiff was only the benamidar with regard to plaint schedule item Nos. 1 and 5. 5. With regard to plaint item No.1, the court passed preliminary decree taking note of the surrender by the plaintiff and in accordance with the share of contribution by the respective parties for the purchase. 6. 1 and 5. 5. With regard to plaint item No.1, the court passed preliminary decree taking note of the surrender by the plaintiff and in accordance with the share of contribution by the respective parties for the purchase. 6. With regard to item Nos.2 and 4 it was held that the first defendant and his wife Beepathumma had one half right each over the same and that the rights of Beepathumma devolved on the plaintiff and defendants 1 to 4. 7. With regard to plaint item No.3, it was held that the plaintiff is entitled to share as a legal heir of Beepathumma. 8. With regard to plaint item No.5 it was held that various alienation with regard to portions of the property have been made by the first defendant and his wife Beepathumma in favour of defendant Nos.16 to 19 and others and that such property is liable to be excluded. With regard to the remaining property it was held that Ext.A3 title deed recites payment of one third of the total consideration by the plaintiff and hence the plaintiff is entitled to 1/3 share of the item. 9. The dispute involved in the appeal is centered around the plaint item No.5. According to the appellant- first defendant, in Ext.A3 regarding item No.5, the plaintiff is only a Benamidar and does not have any right over the same. 10. We have heard learned counsel on either side. 11. During the course of hearing, the learned counsel appearing for the plaintiff submitted that the plaintiff is giving up her claim for half share over item No.5 as a co-owner along with Beepahtumma, and that the plaintiff would be satisfied with the share that devolved upon her as a legal heir of Beepathumma. The first defendant does not dispute that the plaintiff is a legal heir entitled for the share. Therefore, plaint item No.5 is also liable to be partitioned treating it to be the property of Beepathumma, like plaint item No.3. 12. Pending the proceedings, the first defendant died. The children born to the first defendant in the second marriage was impleaded as legal representatives as per the order on CMP 3538/2000. They claim that they are the legal heirs entitled to inherit the property of the first defendant under a Will dated 29.11.1994, executed by the first defendant. 12. Pending the proceedings, the first defendant died. The children born to the first defendant in the second marriage was impleaded as legal representatives as per the order on CMP 3538/2000. They claim that they are the legal heirs entitled to inherit the property of the first defendant under a Will dated 29.11.1994, executed by the first defendant. The sister of the first defendant had filed yet another CMP 4794/2000, claiming to be the legal heir of the first defendant-appellant. The said CMP was closed on 12.08.2003 in the light of order in CMP 3580/2000. An application has been filed as IA 2360/2006 seeking review of the order closing CMP 4794/2000. The issue is as to who are the legal heirs of the first defendant entitled to inherit his share over the properties. 13. A Will having been set up and it being in dispute, necessarily it has to be proved in terms of Section 68 of the Indian Evidence Act . Considering the fact that the present appeal is of the year 1999 and arising from the preliminary decree for partition of the year 1993, and having due consideration of the fact that the final decree proceedings have to be taken for the final disposal of the suit, we are of the opinion that it would be sufficient if the question as to who are the legal heirs of the first defendant is decided in the final decree proceedings. The claim of the plaintiff need not be stalled for the said purpose. 14. With regard to the C.M.A. and the C.R.P. the same arises from the dismissal of applications to restore the suit O.S.156 of 1992 of the Subordinate Judge’s Court, Kasargode and to condone the delay in seeking restoration. The suit was one for partition filed by the 1 st defendant in O.S.172 of 1993 from which A.S.7 of 1999 arose. The suit was dismissed since the counsel reported “no instructions”. Some of the properties in the said suit are admittedly included in O.S.172 of 1993 which is now being disposed of as per this judgment. Being a suit for partition, on the dismissal of the suit for default, a fresh suit could be maintained. The bar under Order 9 Rule 9 of the Code of Civil Procedure would not apply, it being a continuing cause of action [See Shivananda M. v. Susheela & Ors. Being a suit for partition, on the dismissal of the suit for default, a fresh suit could be maintained. The bar under Order 9 Rule 9 of the Code of Civil Procedure would not apply, it being a continuing cause of action [See Shivananda M. v. Susheela & Ors. 2021 (5) KHC 357 ]. Hence, we are of the view that the suit could be restored back to file and could be disposed of on merits, of course, with regard to the items not covered in O.S.172 of 1993. 15. Resultantly, the appeal is allowed in part. The decree and judgment of the trial court with regard to plaint item No.5 [excluding the properties already alienated by registered assignment deeds Ext.B1 assigned to three strangers, Ext.B2 assigned to defendant No.16 and Ext.B3 assigned to defendant No.17 to 19] will stand set aside and a modified decree passed directing item No.5 [excluding the properties already alienated by registered assignment deeds Ext.B1 assigned to three strangers, Ext.B2 assigned to defendant No.16 and Ext.B3 assigned to defendant No.17 to 19] to be partitioned into 30 equal shares. Out of the same, the plaintiff is entitled to two shares, the first defendant is entitled to 15 shares, second defendant is entitled to 5 shares, and defendants 3 and 4 are entitled to 4 shares each. In all other respects, the decree and judgment of the trial court will stand intact. 16. The trial court shall proceed for final decree without waiting for any application from the parties, in the light of the judgment of the Apex Court in Kattukandi Edathil Krishnan and Anr. v. Kattukandi Edathil Valsan and Ors. 2022 SCC Online SC 737 Parties to appear before the trial court on 03.06.2025. 17. The CRP and CMA will stand allowed setting aside the orders impugned therein. The suit O.S.156 of 1992 of the Subordinate Judge’s Court, Kasargode will stand restored back to file. The suit OS 156 of 1992 shall be tried and disposed of in accordance with law but with regard to the items not included in OS 172 of 1993. No costs.