Original Suit No. 6 of 2002 · Madrasdated High Court · 2025

(Defendants 7 to 11 impleaded as per order in A.No.737/2006 dt 05.09.2006) ......DefendantsPrayer:Civil Suit filed under Order IV Rule 1 of Original Side Rules read with Order VII Rule 1 CPC praying to pass a Judgment and decree in favour of the plaintiff a) partition and separate possession of plaintiffs' 7/18 share in the suit properties;b) on the defendants failing to do so, the court itself by appointing an Advocate Commissioner to divide the suit properties by metes and bounds and allot the plaintiffs 7/18 share and pass a final decree in terms thereof;c) for possession of the samed) directing the second defendant to render true and proper accounts for the income realized from the house property at Nandanam and to pay the plaintiffs 7/18 share of future mesne profits from the date of plaint till delivery of possession and e) for the costs of the suit. In TOS:For Plaintiff : Mrs. Chitra Sampath Sr. Counsel assisted by Mrs. Rukani for M/s.P.B.Ramanujam For Defendants : Mr.M.S.Subramanian for D5 to D8D1 died3/25 https://www.mhc.tn.gov.in/judis D2 to D4 : Mr.M.Rajagopalan (not appeared) forD2 to D4In C.S:For Plaintiffs : Mr.M.S.Subramanian Mrs.Chitra Sampath Sr. Counsel Assisted by Mrs. Rukmani for M/s.P.B.Ramanujam for D2For Defendants : D3 to D11 – Names printed , not appeared)*********COMMON JUDGMENTThe Civil Suit and the Testamentary Original Suit have been filed seeking for the reliefs as prayed therein.2. Since both the cases are interlinked each other, in the plaint filed in CS who are the defendants in TOS have reiterated the averments made in the Written Statement filed in TOS. In the Written Statement filed in CS, the defendant who is the plaintiff in TOS have reiterated the averments in the Plaint in TOS. For the sake of convenience, the parties are referred to as per the rank cited in the TOS.4/25 https://www.mhc.tn.gov.in/judis

3. The brief facts of the case of the plaintiff are as follows:a) The deceased C.Elumalai was the owner of the plot bearing D.No.54, 5th Main Road, CIT Nagar, Nandanam, Chennai 600035, having acquired the same from the Tamil Nadu Slum Clearance Board. The deceased availed a loan of Rs.25,000/- The writing hereto annexed and marked as 'A' is the last Will and Testament of C.Elumalai. The Will dated 09.08.1990 was duly executed by him in the presence of witnesses whose names appear at the foot of the Will. The said Will was executed by the deceased in a sound state of mind. The deceased has bequeathed the said property to the petitioner herein to be enjoyed by the petitioner with all power of alienation. No Executor has been appointed under the said Will and the petitioner is the sole legatee under the Said Will, is filing the above petition for grant of letters of Administration in respect of the estate of Late C. Elumalai. b)The amount of assets which are likely to come into the hands of the petitioner does not exceed Rs.61,160/-.The petitioner's elder brother deserted his parents and has been living separately with his wife. After due consideration of the hostile relationship, the Will dated 5/25 https://www.mhc.tn.gov.in/judis

09.08.1990 in and by which he made the petitioner the sole legatee to the above mentioned property. The 2nd respondent cannot claim any right, title, interest in estate of C.Elumalai. The legal notice dated 10.06.1993 issued on behalf of the 2nd respondent to the petitioner claiming right over the suit property. A suitable reply dated 22.06.1993 was also given. The petitioner also received another notice dated 05.06.1994. A detailed reply dated 27.06.1194 has been sent by the petitioner to the above said notice. c)The petitioner undertakes to administers the property and credits of C. Elumalai in any way concerning his Will by first paying the debts and then the legacies therein bequeathed so far as the assets will extend and to make a fair and true inventory therein and exhibit the same in this court within 6 months from the date of grant of letters of Administration with the Will annexed to the partition and also render to this court a true account of the said property and credit within one year from the said date. d)No application has been made to any District Court or delegate for grant of probate of any Will of the said deceased for grant of letters of Administration with or without the annexed by the petitioner herein. Hence, he seeks to allow this suit for the above stated reliefs. 6/25 https://www.mhc.tn.gov.in/judis

4. Written statement filed by the 8th defendant which is also adopted by 5 to 7 in TOS which are averments in the plaint of CS is as follows:a) A construction was put up on the said site by the joint family and by joint efforts and also from the proceeds of ancestral property in Kunnapattu Village. The loan of Rs.25,000/- from the T.Nagar Cooperative Society is now being discharged by the family. On the death of Elumalai Naicker, his 1/3 share in the suit properties devolved on the defendants 1 to 6 who are his sons, wife and daughters, entitling them from 1/6th and 1/3 each. Thus Arunagiri and Dhanapal will get 7/18 each and other defendants will get 1/8 each. b) After the demise of the first defendant E.Arunagiri, his legal representatives have become entitled in the rental income also. Elumalai Naicker died intestate, on 05.06.1994 and the notice issued demanding partition through their lawyer on 21.06.1994. The plaintiffs/defendants were members of the Joint Family and defendants, Kuppammal, Nagammal and Sundarammal are the daughters of Late Elumalai Naicker. The agricultural land in Kumannapatu were large in extent and yielding 7/25 https://www.mhc.tn.gov.in/judis substantial income for running the family and also apart from running the family, they were able to save substantially and acquire the properties. c) During the purchase of A schedule property, Arunagiri was working as Clerk in the Postal and Telegraph Department and obtained loan of Rs.25000/- on the security of his pay certificate. The said loan was being discharged by the family on letting out a portion in the house. Elumalai Naicker died intestate on 02.01.1993 leaving behind his wife Kamatchi Ammal and sons and daughters. The Will dated 09.08.1990 is not true and genuine Will. The Will was never probated at earlier point of time. The alleged Will is not true and valid. The ground floor was occupied by the Joint Family and first floor was rented out which consist of three portions to three tenants and was yielding the income of Rs.1600/- per month. After the demise of Arunagiri, one more portion is now being rented out and all the four portions, plaintiff is collecting the rents. It is further stated that there had been no strained relationship for Arunagiri with his parents. e). The suit for partition has been filed in CS.No.1656/1994 and subsequently re-transferred from City Civil Court and numbered as Tr.CS.No.797/2002 and the same is pending. The notice dated 05.06.1994 8/25 https://www.mhc.tn.gov.in/judis is a legitimate claim and the defendants are entitled to a share in the joint family properties. The claim of the plaintiff that he was attending to the needs of the parents is totally false. This defendant denies the due execution and attestation of the said Will. Hence, the suit is liable to be dismissed in limini. Hence, they pray for dismissal of the suit.5. Based on the above said pleadings in both CS and TOS the following issues were framed separately:CS. No.797 of 2002:(i). Whether the plaintiffs are together entitled for 7/18th share in schedule 'A' of the suit property?(ii). Whether the suit properties are joint family properties or separate properties of Elumalai Naicker?(iii). Whether the 2nd defendant has become the absolute owner of the 'A' schedule suit property by virtue of the Will dated 09.08.1990 executed by his father Elumalai Naicker in his favour?(iv) Whether the plaintiffs are entitled for any other relief?9/25 https://www.mhc.tn.gov.in/judis TOS. No.6 of 2002:(i) Whether the Will dated 09.08.1990, is true and valid.ii) Whether the plaintiff is entitled to grant of Letters of Administration with the Will dated 09.08.1990?iii) Relief and cost?6.On the side of the Plaintiff, Ex.P1 to Ex.P16 were marked and PW.1 and P.W.2 were examined. On the side of the Defendants, Ex.D1 to Ex.D36 were marked and DW.1 and DW2 were examined. 7. Heard both sides and perused the material available on record.Issue Nos.1 to 3 in TOS and No.3 and 1 in CS: 8.The learned counsel for the plaintiff submitted that the Schedule-A property is the self-acquired property of C.Elumalai who purchased the land from the Tamil Nadu Slum Clearance Board, based on a registered Sale Deed dated 03.10.1977, with his self-earned money. 10/25 https://www.mhc.tn.gov.in/judis C.Elumalai had constructed building therein after having obtained a loan from 'The Thyagarayanagar Co-operative Building Society Limited and he had discharged a part of the loan amount. The remaining loan amount was discharged by the Plaintiff and he had also obtained a Discharge Certificate from the Society on 08.09.1999. The 1st Defendant left the family after his marriage in 1971 and had been living separately. He had not contributed anything for the family. The Plaintiff alone had been with his father till his death and hence the Testator bequeathed his house-Schedule A Property to the Plaintiff. The Testator passed away, 3 years after executing the Will in a sound and disposing state of mind. The Plaintiff was looking after him till his death. 9. It has been further submitted that after the marriage of the 1st defendant, he got separated from his parents and he had not asked for partition of Schedule-B property through the Legal Notice issued by him on 10.06.1993. Further, B schedule property was sold out to third parties in various sale deeds, wherein the 1st Defendant's share could be obtained from the subsequent purchaser, provided if he has a share in the same.11/25 https://www.mhc.tn.gov.in/judis

10. It has been further submitted that the Section 68 of the Evidence Act has been satisfied by way of evidence of P.W2. PW-2-one of the attesting witness S.Wilson, has clearly spoken about the due execution and attestation of the Will of C.Elumalai and the same had not been demolished in the cross examination. No contra evidence has been laid down to dispute the evidence of PW-1. Further, the 1st Defendant has remained silent after the Reply Notice was issued to him by the Plaintiff on 22.06.1993, which is Exhibit P-5. When the 1st Defendant was put on notice about their father's Will, the 1st Defendant did not give any rejoinder to the reply notice disputing the Will. 11. It has been further submitted that the 1st Defendant has not filed his Written Statement nor has he taken the stand to lead oral evidence before this Hon'ble Court to disprove the Will. The sisters of the Plaintiff who are Defendants 2 to 4, have also not filed their Written Statement and taken the stand to dispute the Will of their deceased father. The 1st Defendant did not file any Written Statement in the suit for partition, filed 12/25 https://www.mhc.tn.gov.in/judis by his wife and children, though the 1st Defendant was living under the same roof with his wife and children. The 1st Defendant did not file any Caveat in the O.P. filed for Letters of Administration, opposing the Will. Though the sisters had filed a Caveat in the O.P., they have not come forward to contest the T.O.S. The present proceedings, are contested only by the legal heirs of the 1s Defendant.12.It has been further submitted that the Defendants have not brought forth any suspicious circumstances to disprove the Will. Hence the Will is a true and genuine Will executed by the Testator. Further, the siblings and mother of the Plaintiff do not dispute the sale of the Schedule-B properties. Therefore, Schedule - A and B properties are not open for partition to the Defendants based on the above-mentioned details. Hence, he seeks the relief as prayed in TOS 6 of 2002 and seeks to dismiss the suit Tr.C.S.No.797 of 2002. 13.The learned counsel for the defendants submitted that the 8th Respondent in T.O.S. No.6 of 2002 filed a Written Statement. The 13/25 https://www.mhc.tn.gov.in/judis Agricultural land in Kunnampattu Village and the house property in Nandanam are the joint property and coparcenary property of Elumalai, Arunagiri, Dhanapal and that Agricultural land owned by Elumalai has yielding substantial income for running the family. Out of the income of the said agricultural land and from the sale proceeds of the same, A schedule property was purchased in the name of Elumalai Naicker from Tamil Nadu Slum Clearance Board and the entire cost of the said plot was paid from the joint family income. The construction was also put by the Joint Family and by the joint efforts of the members of joint family and of agricultural lands in Kunnapattu Village. 14. It has been further submitted that Arunagiri was working as clerk in the postal and telegraph department and obtained loan of Rs.25,000/- from Tamil Nadu Co-operative Building Society on the security of his pay certificate. The Plaintiff did not contribute for the purchase or construction of the flat. Apart from that Arunagiri had obtained hand loan and also availed loan from his GPF in his office. The ground floor was occupied by the family and the 1st floor consisting of 3 portions 14/25 https://www.mhc.tn.gov.in/judis was let out to 3 tenants and yielding an income of Rs.1600/- per month. Portion of the property was let out and rental income was used for the discharge of the loan. After the demise of Elumalai, the plaintiff started collecting the rentals and now claimed to have partly discharged the loan. Though there is no stained relationship for Arunagiri with his parents, Will was not executed by Elumalai Naicker and it was not genuine and fabricated one. Further, the Will is not registered and no reason is mentioned for non-registration. 15.It has been further submitted that in the evidence of P.W2, he deposed that he does not know family of the Plaintiff and Arunagiri. He also stated that Elumalai does not know to read and write. He does not know who has drafted and typed the Will. Under such suspicious circumstance and these are not dispelled by Plaintiff, hence, the will is not a genuine one and Probate/Letters of Administration not to be granted. Hence, the defendants are entitled to shares in A and B schedule properties as prayed in Civil Suit No.797 of 2002.15/25 https://www.mhc.tn.gov.in/judis

16.On a perusal of the records, it is seen that the Testator, ie.Mr. C. Elumalai said to have executed the Will dated 09.08.1990 vide Ex.P16, and died on 02.01.1993 vide Ex.P3. There is no dispute in the relationship between the plaintiff and the defendants herein who are the legal heirs of the Testator. Based on the original Will, the Plaintiff filed O.P. No.6 of 2002 having impleaded the legalheirs of the Testators as parties in the proceedings. However, the defendants seeks their appropriate shares in A and B schedule properties stating that they are acquired by C.Elumalai. 17. In the evidence of P.W1, he deposed that the Testator purchased the land from the Tamil Nadu Slum Clearance Board, by virtue of a registered Sale Deed dated 03.10.1977 in his favour. The 1st defendant left the A schedule property after his marriage and lived separately with his family and he only took care of his father till his death. He further said that the Will was found in the Box used by his father after his demise. 18.In the evidence of P.W2, he deposed that the Testator signed in the presence of his wife, 1st attesting Witness-Raja Gopal and himself. He 16/25 https://www.mhc.tn.gov.in/judis further deposed that the Testator was in sound state of mind while executing the Ex.P16-Will. 19.In the evidence of D.W1, she admitted the signature of her grandfather. Even though DW1 and DW2 stated that they were in the A schedule property during the life of the Testator, they have miserably failed to prove the same. Further, the defendants have not proved that the Will has been executed under coercion and influence and it has been executed under suspicious circumstance. 20. In view of the aforesaid observations, it is seen that P.W2 identified the signature of the Testator and stated that the Testator put his signature in the presence of 1st attesting witness, wife of the Testator and himself in sound state of mind while executing the Ex.P16-Will. Further, D.W1 has not objected the signature of her Grandfather and admitted the same. Hence, there is no suspicious circumstance in executing the Will by the Testator in favour of the plaintiff. Thus, the plaintiff has proved the said Will dated 09.08.1990 by way of oral and documentary evidence. Hence, the alleged Will is true and genuine and the same was not executed under 17/25 https://www.mhc.tn.gov.in/judis undue influence. Accordingly, Issue No.1 is answered in TOS. Since the Issue No.1 is answered in favour of the plaintiff, he is entitled to grant Letter of Administration as prayed for. Accordingly, Issue Nos.2 and 3 in TOS are answered. While Issue No.1 to 3 are answered in favour of the plaintiff in TOS, the 2nd defendant in CS has become the absolute owner of the A schedule property by virtue of the Will dated 09.08.1990 executed by his father Elumalai Naicker in his favour. Accordingly Issue No.3 is answered and Plaintiffs in CS are not entitled for 7/18th share in Schedule A of the suit property. Accordingly Issue No.1 is answered in CS. Issue No. 2 and 4 in CS 21. In so far as B schedule property is concerned, it is admitted by the plaintiff that B schedule property is ancestral property and devolved on late C.Elumalai. Further, the plaintiff admitted in the Written statement that the defendants are entitled to claim their respective shares in B Schedule property. Hence, the defendants are entitled to claim their share 7/18 in B Schedule property. Accordingly, preliminary decree is passed in B Schedule property alone. In so far as the contentions regarding sale of the 18/25 https://www.mhc.tn.gov.in/judis properties in B schedule property, apportionment shall be decided in the final decree proceedings. Accordingly issue No.2 and 4 are answered in CS. 22. The plaintiff in TOS shall execute a security bond for a sum of Rs.25,000/- (Rupees Twenty Five Thousand Only) in favour of the Assistant Registrar (O.S.II), High Court, Madras, within a period of three (3) months as required under law. 23. In the result, the TOS is decreed as prayed for and preliminary decree is passed in Civil suit in the aforesaid terms in B schedule property alone. No costs. 30.04.2025Index : Yes/NoInternet : YesSpeaking/Non-speaking ordergv/lbm19/25 https://www.mhc.tn.gov.in/judis List of witnesses examined in TOS :PW1 - Mr.E.DhanapalP.W2.- Mr.S. WilsonDW1 - A. JagadeeswariDW2 - SulochanaList of Exhibits marked:Sl.No.DatedDescription of documents(TOS.No.6 of 2002)Exhibits 1.23.08.1978Patta in favour of Elumalai Naicker Ex.P1 2.12.05.1982Original Deliver Order for supply of cements for constructing the house Ex.P2 3.03.01.1993Original report of Death of Elumalai Naicker given by the care taker of the burial ground Ex.P3 4. 10.06.1993Legal Notice issued to the plaintiff Ex.P4 5.22.06.1993Reply notice given by the plaintiff Ex.P5 6.27.06.1994 Reply notice given by the plaintiff with acknowledgement Ex.P6 7.24.12.1995Copy of the report of Death of Kamatchi Ammal wife of Elumalai Naicker given by the care taker of the burial ground Ex.P7 8. -----Original Loan Repayment receipts issued by Thyagaraya Nagar Building Cooperative Society in the year 1995-1996 Ex.P8 9. 05.02.1996Original Death Certificate of Kamatchi Ex.P920/25 https://www.mhc.tn.gov.in/judis Sl.No.DatedDescription of documents(TOS.No.6 of 2002)ExhibitsAmmal wife of Elumalai Naicker 10.08.09.1999Original Discharge Certificate issued by Thyagaraya Nagar Building Cooperative Society Ex.P10 11. 21.10.1999Original Death Certificate of Elumalai Naicker Ex.P11 12. 21.08.2008Copy of Legal Heirship Certificate of late Elumalai Naicker Ex.P12 13 -----Original Receipts (series) for the payment of Metro Water Ex.P13 14 -----Original Receipts (series) for the payment of property tax Ex.P14 15 -----Original Work card of Casual Mazdoor given by Madras Telephone in favour of plaintiff. Ex.P15 1609.08.1990Original unregistered Will executed by Elumalai Naicker in favour of E.Dhanapal(marked on 09.02.2017 with objections) 1713.08.1984Registration copy sale deed executed by Elumalai Naicker, Arunagiri and Dhanapal in favour of Adimoolam Ex.D1 1809.01.2009Registration coopy of sale deed executed by Kuppu alias Kuppammal and 3 others in favour of Sankar S/o.Veerabadran Ex.D2 1909.01.2009Registration copy of registered sale deed executed by Kuppu alias Kuppammal and 3 tohers in favour of Saraswathy W/o.Dhanapal Ex.D3 2004.08.2012Registration copy of sale deed executed by Kuppu alias Kuppammal and 3 others in favour of Sea Horse Realtors Private Ltd., Ex.D421/25 https://www.mhc.tn.gov.in/judis Sl.No.DatedDescription of documents(TOS.No.6 of 2002)Exhibits 2103.10.1977Registration copy of sale deed executed by Tamil Nadu Slum Clearance Board in favour of Elumalai Naicker Ex.D5 2202.06.1993Original Death Certificate of C.Elumalai Naicker-Date of death 02.01.1993 Ex.D6 2322.03.1994Original property Tax Collection receipt (3 Nos) in the name of Elumalai Naicker Ex.D7 2428.05.1994Original Chitta for B schedule property in the name of Elumalai Naicker Ex.D8 2505.06.1994Office copy of Lawyer's notice issued on behalf of Mariammal and others to E. Arunagiri and others Ex.D9 26 ----Original Acknowledgement cards (series) signed by E.Dhanapal and 4 others (5 Nos) Ex.D10 27 ----Original Returned Cover addressed to Kuppammal Ex.D11 2827.06.1994Original Reply Notice issued on behalf of E. Dhanapal to Plaintiff's counsel Ex.D12 2923.12.1995Original Death Certificate of Kamatchi Ammal wife of Elumalai Naicker Ex.D13 3010.09.1996Registration copy of sale deed executed by Elumalai son of Gurusamy and others in favour of Rajeswari W/o. Selvaraj Ex.D14 3113.08.1998Original Election Identity card issued to Arunagiri S/o.Elumalai Ex.D15 3213.08.1998Original Election Identity Card issued to Sulochana W/o. Arunagiri Ex.D16 3302.07.1999Original Election Identity Card issued to Murugavel S/o.Arunagiri Ex.D17 3405.09.2001Xerox copy of legal heirship certificate of Elumalai Naicker Ex.D18 3515.04.2003Original Election Identity Card issued to Mariyammal D/o.Arunagiri Ex.D1922/25 https://www.mhc.tn.gov.in/judis Sl.No.DatedDescription of documents(TOS.No.6 of 2002)Exhibits 3615.04.2003Election Identity Card issued to Jagadeeswari D/o.Arunagiri Ex.D20 3705.10.2004Registration copy of sale deed executed by Kothandaraman and others in favour of Ganapathy son of Murugesa Naicker Ex.D21 3823.08.2007Original Death Certificate of Arunagiri S/o.Late Elumalai Naicker Ex.D22 3904.10.2007Xerox copy Legal Heirship Certificate of E.Arunagiri S/o.late Elumalai Naicker Ex.D23 4012.05.2008Registration copy of sale deed executed by V. Selvaraj and another through their POA Agent in favour of M/s.Little Flower Realtors Private Limited Ex.D24 4118.09.2009Registration copy of sale deed executed by V. Sankar and D. Saraswathy through their POA Agent in favour of M/s.Bill Flower realtors Pvt Ltd., Ex.D25 4218.02.2011Registration copy of sale deed executed by Ganapathy in favour of M/s.Spirit Realtors Pvt Ltd., Ex.D26 4307.05.2012Original Encumbrance Certificate for the period 01.01.1987 to 03.05.2012 in respect of 'B' Schedule properties Ex.D27 4427.08.2015Original Encumbrance Certificate for the period 01.01.1987 to 26.08.2015 in respect of 'B' Schedule properties Ex.D28 452005-2009Original Family Card (Ration Card in the name of Arunagiri) Ex.D29 46 -----Certified copy of Adangal extract for 'B'Schedule properties in Kunnapattu Village for Fasli 1403 to 1409 Ex.D30 4726.07.2012Office copy of Lawyer's Notice issued on behalf of plaintiffs to Mrs.Rajeswari and 6 others Ex.D3123/25 https://www.mhc.tn.gov.in/judis Sl.No.DatedDescription of documents(TOS.No.6 of 2002)Exhibits 48 ----Original Postal Acknowledgement cards (6 Nos) signed by Rajeswari and 5 others ExD32 49 ----Original Returned cover addressed to M/s.Little flower Realtors Pvt Ltd., Ex.D33 5007.08.2012Office Copy of Lawyer's notice issued on behalf of plaintiffs to M/s.Little Flower Realtors Private Ltd., Ex.D34 51 -----Original Postal acknowledgement card signed by M/s.Little Flower Realtors Private Ltd., Ex.D35 5214.07.1971Original Marriage Invitation of E.Arunagiri and Sulochanambal Ex.D3630.04.2025lbm24/25 https://www.mhc.tn.gov.in/judis A.A.NAKKIRAN,J.Gv/lbmTOS.No.6 of 2002and CS.No.797 of 200230.04.202525/25