AS No. 424 of 2018 __________ Page1 of 11 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 07-04-2026 CORAM THE HON'BLE MR JUSTICE C.V. KARTHIKEYAN AND THE HON'BLE MR.JUSTICE K.RAJASEKAR AS No. 424 of 2018 and C.M.P.No.11140 of 2018 1. S.Sukumar (died) 2. Latha 3. Manimozhi 1st appellant died, A3 is brought on record as LRs of deceased first appellant vide order of court dated 04/06/2024 made in CMP.No.11588 of 2024 ..Appellants Vs 1. Gowri 2. P.Krishnamoorthy 3. D.Subramanaian 4. K.Duraisamy 5. C.Bhaskar 6. M.Venkatraman 7. N.Balusamy 8. N.Sivakumar 9. C.Palanisamy 10.D.Eswaramoorthi 11.B.Kesavamoorthy ..Respondents Appeal Suit filed under Section 96 of CPC read with Order 41 Rule 1 of CPC seeking to set aside the Judgement and Decree dated 21.12.2017 passed in O.S.No.170/2012 on the file of on the file of I Additional District Judge, Erode and decree the suit in O.S.No 170/2012 on the file of on the file of I Additional District Judge, Erode. https://www.mhc.tn.gov.in/judis AS No. 424 of 2018 __________ Page2 of 11 For Appellants: Mr.P.Valliappan, Senior Counsel for Mr.Sithirai Anandam For Respondents: Mr.A.Sundaravadhanan for R1 and R2 Mr.C.Ramaraj for Mr.M.Guruprasad for R3 and R4 Mr.V.S.Kesavan for R5 Mr.V.Sekar for R6 No appearance for R7 to R11 JUDGMENT (Judgment of the Court was delivered by C.V.Karthikeyan J.) Plaintiffs in O.S.No.170 of 2012 on the file of the I Additional District Court Erode, aggrieved by the dismissal of the suit by judgment dated 21.12.2017, had filed the present Appeal. 2. The suit in O.S.No.170 of 2012 had been filed seeking partition and separate possession of the properties described in the schedule to the plaint. There were totally seven items in the properties, which had been described in the plaint. It is to be noted that as on date items 1 to 4 have been sold and the purchasers have also been impleaded as parties. However, learned Senior Counsel appearing for the appellants very fairly submitted that the Appeal is not pressed as against such sale with respect to items 1 to 4. The learned Senior Counsel further contended that items 5 and 7 are available for partition and https://www.mhc.tn.gov.in/judis AS No. 424 of 2018 __________ Page3 of 11 separate possession. It is, however, contended on behalf of respondents that item 5 had been purchased in the name of the first defendant Palaniyathal alias Palaniammal, who had executed a settlement deed in favour of the third defendant P.Krishnamoorthy and the said P.Krishnamoorthy had executed a sale deed with respect to item 5 and that therefore, item 5 is also not, as on date, available. The contention as to whether Palanimmal had any right to execute the settlement deed is one of the issues raised by the learned Senior Counsel appearing for the appellants. It is further contended that item 7 had also been sold and it is very fairly contended by the learned Senior Counsel appearing for the appellants that the appeal is not pressed as against such sale of item 7. Therefore, the appeal is confined to items 5 and 6 of the suit properties alone. 3. Even before proceeding further, it would only be appropriate if the relationship among the parties are stated. The first defendant Palaniyathal @ Palaniammal was married to one Sengottaiyan. The properties, which are the subject matter of the suit were allotted to Sengottaiyan in a partition deed entered into between him and his three brothers, Thangamuthu, Palanisamy and Nallasamy and also his father Chennimalai Gounder. In that partition deed, which had been marked as Ex.A3 dated 23.8.1976, 'C' schedule property had been allotted to Sengottaiyan. Sengottaiyan died in the year 1990, and, according to the plaintiffs, intestate. The first plaintiff Sukumar is the son of Sengottaiyan. The second defendant Gowri is the daughter of Sengottaiyan. The third defendant P.Krishnamoorthy is the son of the second defendant https://www.mhc.tn.gov.in/judis AS No. 424 of 2018 __________ Page4 of 11 Gowri. The other defendants in the suit are subsequent purchasers of the suit properties which had been, according to the plaintiff, dealt with by Sengottaiyan. without any right to execute any sale or to bequeath the property. It is contended that Sengottaiyan had executed a Will, which had been produced during trial as Ex.B6 dated 13.05.1986. The right of Sengottaiyan to bequeath the properties under the Will was put to serious challenge by the plaintiff and again put to challenge in this Appeal. 4. In the Will, it had been mentioned that the properties, which he had bequeathed, had been allotted to him in the partition deed dated 03.08.1976 entered into by him on the one hand and his brothers and father on the other hand. He had also stated in the Will that he was working as a Document Writer and owing to the advancement of his age, he was executing the Will. He had very clearly given the flow of title with respect to each property, which he had mentioned in the Will. He had stated that with the monies available with him and with his wife, the first defendant Palaniyathal alias Palaniammal, each one of them had purchased separate houses and since they were adjacent houses, it would only be appropriate that such houses are bequeathed to his wife. He had very clearly stated that the 'A' schedule property is bequeathed to his wife Palaniyathal alias Palaniyammal for her to enjoy the same. With respect to his daughter Gowri, he had also similarly stated that 'B' schedule property could be bequeathed to her. With respect to the first plaintiff Sukumar, his son, he had also stated that the first plaintiff did not complete his education and he had been https://www.mhc.tn.gov.in/judis AS No. 424 of 2018 __________ Page5 of 11 married on 7.12.1970 and that he had separated from him and is living with his in laws and also was a Railway Contractor. After mentioning about the jewellery, which had been given at the time of his marriage, he had further stated the properties which could be bequeathed to the said Sukumar. He had also provided for the second plaintiff/daughter of the first plaintiff. He had bequeathed 'C' schedule property to his son Sukumar/first plaintiff. 5. Even before proceeding further, it must also be stated that during the pendency of the suit or even prior to the institution and during the pendency of the Appeal, both Sukumar-the first plaintiff and Gowri-the second defendant either individually or jointly had dealt with and conveyed the properties, which had been bequeathed to them. This fact had been pointed by the learned counsel for the first respondent who contended that the first plaintiff had acted under the Will and having acted in terms of the Will and taken benefit under the Will, cannot turn around and question the right to execute the said Will. 6. The learned Senior Counsel for the appellants pointed out that Sengottaiyan and his wife Palaniyathal alias Palaniammal did not have any independent income and that the only property, which had yielded income is the properties, which was allotted under the partition deed, Ex.A3 dated 23.08.1976 and therefore, such properties had been characterized as ancestral in nature. It had been stated that in the partition deed, Ex.A3, the properties are described as ancestral properties (pithurarjithya) and therefore, if at all, Sengottaiyan could execute a Will, it could be only in respect of his share. It had been stated that https://www.mhc.tn.gov.in/judis AS No. 424 of 2018 __________ Page6 of 11 even though the properties are to be considered as ancestral, then on the birth of Sukumar, he would get a share over the same and therefore, the entire properties could not be bequeathed by Sengottaiyan. 7. Further, a perusal of the Will, Ex.B6 shows that Sengottaiyan was working as Document Writer and had income and he had stated that with his income, he had purchased the 5th item of suit property in the name of his wife Palaniyathal alias Palaniyammal. It is also contended that in the evidence of DW1/the second defendant Gowri had deposed that the properties are ancestral in nature and items 1 to 3 of properties had been allotted to Sengottaiyan in the partition deed and that she had also sold an extent of 1000 sqft, which had been allotted to her and that the first plaintiff and her mother had also attested the said sale. Such version of the deposition of DW1 was relied on by the learned Senior Counsel for the appellants to point out that the properties had been acquired from ancestral income and therefore, Sengottaiyan could not have executed the Will for the entire properties. But, the onus lies on the plaintiffs/appellants herein to first establish this fact. The first plaintiff did not graze the witness box and it was only the second plaintiff, who had adduced evidence as PW1. She was 9 years old at the time of partition. Therefore, she would not have direct knowledge about the partition deed executed or about the flow of title. There is no reason why the first plaintiff had not chosen to tender evidence. The burden is heavily on the plaintiffs to establish that the entire properties bequeathed in the Will, Ex.B6 were procured from and out of the https://www.mhc.tn.gov.in/judis AS No. 424 of 2018 __________ Page7 of 11 money yielded from the portion of the ancestral property allotted to Sengottaiyan. 8. The second plaintiff, in her evidence had stated as follows:- "8/ ,e;j tHf;fpy; fz;Ls;s 5?tJ mapl;l brhj;ij vdJ jhj;jh br';nfhl;ilad; g{h;tPf brhj;Jf;fspy ; te;j tUkhdj;ijf; bfhz;Lk;. rpy g{h;tPf brhj;Jf;fis tpw;gjw;F Kd;g [ 1984?k ; tUlk; Vwg;gLj;jg;gl;l 3 mf;hpbkz;l xg;ge;jk; K:yk; fpilj;j bjhiffisf ; bfhz;Lk ; 1k; gpujpthjp gHdpak;khs; bgahpy; vdJ jhj;jh br';nfhl;ilad; gzk; bfhLj;J th';fpdhh;/ ,jpy; 1?k; gpujpthjp gpdhkp Mthh;/ gpd;g[ vdJ jhj;jh br';nfhl;ilad ; rpWrpW gFjpfshf gyUf;F 1990?k ; tUlj;jpw;F Kd;g[ tpw;Wtpl;lhh;/ mtUk; 1990?k; tUlk; ,we;J tpl;lhh;/ kPjKs;s brhj;J ,e;j tHf;fpy ; 5?tJ mapl;l brhj;jhf fhz;gpf;fg;gl;Ls;sJ/ 5?tJ mapl;l brhj;J 6/2/1984?k ; njjpapy ; vdJ jhj;jh https://www.mhc.tn.gov.in/judis AS No. 424 of 2018 __________ Page8 of 11 br';nfhl;ilad ; gzk ; bfhLj;J (U:gha; 5000) th';fpdhh;/ 1984?k ; tUlj;jpa 3 fpiua gj;jpu';fs ; K:yk ; tpw;w bjhif U:gha ; 34.869 MFk;/ nkw;go fpiua gj;jpu';fspd ; rhd;W efy;fis jhf;fy; bra;J cs;nsd;/ 6k ; gpujpthjp gh!;fh; mtuJ vjph ; tHf;Fiuapy ; 6tJ ghuhtpy; jhth 5tJ mapl;l brhj;ij 16/2/1984k; njjpapy; br';nfhl;ilad; th';fpa[s;shh; vd cz;ikia xg;g[f;bfhz;L brhy;ypa[s;shh;/ 1k ; gpujpthjp gHdpak;khs ; kw;Wk ; mtuJ fzth ; br';nfhlilad ; Mfpnahh;fSf;F jdpg;gl;l tUkhdk ; vJt[k ; fpilahJ vd;gij gzpt[ld; bjhptpj;Jf; bfhs;fpnwd;/ 9/ ,e;j tHf;fpy; fz;Ls;s 6tJ mapl;l brhj;ij vdJ jhj;jh br';nfhl;ilad; 2/3/1988k ; njjp brd;dpkiy rhh;gjpthsh; mYtyfj;jpy ; Mtz vz ; 173/1988 Mf gjpt [ bra;J mtuJ bgahpy ; fpiuak; th';fpdhh;/ mjd; gjpt[ rhd;W efy;fis https://www.mhc.tn.gov.in/judis AS No. 424 of 2018 __________ Page9 of 11 ehd ; jw;nghJ jhf;fy ; bra;J cs;nsd;/ thjpfis Vkhw;w ntz;Lk ; vd;fpw bfl;l vz;zj;jpy ; 1k ; gpujpthjp gHdpak;khs ; 2k; gpujpthjp bfshp bgaUf;F jhd fpiua gj;jpuk; K:yk; nkhroahf 9/6/2004k; njjpapy; vGjpf;bfhLj;J tpl;lhh;/ nkw;go jhd fpiua gj;jpuj;jpd ; gjpt [ rhd;W efy;?I jhf;fy ; bra;J cs;nsd;/ mjpy; fz;Ls;sthW brhj;J tptuk; Fwpg;gplg;gl;Ls;sJ/" 9. This is the evidence relating to items 5 and 6 of the plaint schedule properties, which are now pressed as available for partition and separate possession. But, however, what is stated is only a mere statement that 5th item of property was purchased from the income obtained from the ancestral property and upon the agreement, which had been entered prior to 1984 and the income obtained therein, in the name of the first defendant. But, however, this statement has not been proved in the manner known to law. It must be very clearly established that income yielded from the ancestral property was surplus and only with such surplus income the properties were purchased. Mere statement that ancestral property had yielded income is not sufficient. The https://www.mhc.tn.gov.in/judis AS No. 424 of 2018 __________ Page10 of 11 evidence will have to travel further to prove that the properties yielded income, there was surplus after meeting the family expenses and from and out of such surplus income the properties were purchased. In the absence of such evidence, we are not able to accept the contention that the properties had the character of ancestral property and that therefore, Sengottaiyan did not have any right to execute the Will. 10. As stated by us earlier, the Will Ex.B6 had been acted upon by the first plaintiff and the second defendant Gowri. The first plaintiff and the second defendant Gowri had dealt with the properties allotted to them individually and jointly. The first plaintiff, having done so, cannot question the right of Sengottaiyan to execute the Will. Therefore, we are of the opinion that the plaintiffs cannot sustain the suit for partition and separate possession claiming that the properties are ancestral in nature. We find no reason to interfere with the judgment of the Trial Court dismissing the suit. The Appeal Suit is dismissed. No costs. The connected Miscellaneous Petition is closed. (C.V.K.,J.) (K.R.S.,J.) 07-04-2026 Index: Yes/No Speaking/Non-speaking order Neutral Citation: Yes/No ssk To I Additional District Judge, Erode. https://www.mhc.tn.gov.in/judis AS No. 424 of 2018 __________ Page11 of 11 C.V.KARTHIKEYAN, J. AND K.RAJASEKAR, J. ssk AS No. 424 of 2018 07-04-2026 https://www.mhc.tn.gov.in/judis