6.Pending appeal, the first defendant has filed an application in I.A.No.249 of 2011 seeking permission to examine the attestators. The learned Appellate Judge, by his judgment and decree, dated 04.07.2012, allowed the appeal and remitted the matter to the trial Court on the ground that the trial Court had not adverted into the fact that the first plaintiff, namely, the husband of Pandiammal, will not be a Class-I heir of Malaikonar and Karupayee Ammal and therefore, he would not be entitled to a share in the suit property. The appellate Court overlooked the fact that the question as to whether the first plaintiff would be entitled to a share along with plaintiffs 2 to 4 is purely academic and even conceding that the first plaintiff would not be entitled to succeed to the property of his parents-in-law, the plaintiffs 2 to 4, being grandchildren of Malaikonar / children of predeceased daughter, Pandiammal, would be the class-I heirs of Malaikonar and therefore, they would be entitled to the share of Pandiammal in view of Sections 8 to 10 of the Hindu Succession Act, 1956. On the said pretext, the learned Appellate Judge without deciding the application filed under Order XLI Rule 27 CPC, namely, I.A.No.249 of 2011 allowed the appeal and remitted the matter to the trial Court with liberty to the parties to lead further evidence.
