Madrasdated High Court · 2025

S.A. No.422 of 20244. The first defendant, Krishnamal, claimed a 1/4th share in the suit properties, contending that the properties are the ancestral properties of one Nanjappa Gowder @ Nanjaya Gowder, who died leaving behind his wife and four sons, namely, the first defendant, Easwaran, Velliangiri, Rangasamy, and Duraisamy, and one daughter, Sundarambal. One of the sons, Velliangiri, predeceased, leaving behind the plaintiffs as his legal heirs. Upon the death of the said Velliangiri, the plaintiffs claimed entitlement to a 1/5th share in the entire suit properties. Since the other defendants, who are the brothers and sister of Velliangiri, were not willing to amicably partition the properties, the plaintiffs filed the suit seeking a valid partition.5. The first defendant contested the suit, stating that she is the wife of Nanjappa Gowder and that the entire suit properties, both Item 1 and Item 2, belong to her absolutely. She claimed to have purchased Item 1 in the year 1943 and stated that Item 2 also belongs to her, as reflected in the patta which stands in her name. She further stated that she was coerced into signing a partition deed in 1991 without her consent. Despite this, she 3\26 https://www.mhc.tn.gov.in/judis S.A. No.422 of 2024continued to enjoy the properties as her own and denied the plaintiffs' claim that the properties were ancestral.6. Defendants 2 to 5 also disputed the plaintiffs' claim, stating that the properties belonged to their mother. Though a partition deed was executed in 1991, they claimed it was never acted upon. The learned counsel for defendants 6 and 7 submitted that they had no objection to allotting a share to the plaintiffs. Subsequently, defendant 5 filed an additional statement claiming that the second item of the property belonged to the first defendant under the Natham Settlement Scheme. It was also stated that the first defendant had executed a Will in favour of defendant 5 in respect of the second item, and the first item was bequeathed to defendants 2 to 5 through a Will dated 31.12.2009. The first defendant passed away on 16.02.2014. As per the said Wills, defendants 2 to 5 are now in possession and enjoyment of the suit properties. Thus, they contended that the plaintiffs have no right or title in the properties.4\26 https://www.mhc.tn.gov.in/judis S.A. No.422 of 20247. The learned trial judge framed specific issues for consideration. Upon evaluating the evidence on record, the trial court found that as per the sale deed marked as Exhibit B1, dated 23.12.1943, Item 1 stands in the name of the first defendant. Additionally, Item 2 stands in her name as per Patta No. 228 (Exhibit B4). Therefore, the court concluded that both items are the absolute properties of the first defendant. During the pendency of the suit, the first defendant executed two Wills in favor of defendants 2 to 5. The execution of the Wills was proved by examining an attesting witness. Accordingly, the trial court held that the suit properties are the absolute properties of Krishnamal, and as per the Wills, she validly bequeathed them to defendants 2 to 5. Thus, the plaintiffs have no share in the suit properties, and the suit was dismissed.8. Aggrieved by the said judgment, the plaintiffs preferred A.S. No. 9 of 2023. The learned first appellate judge analyzed the facts and evidence afresh. During the hearing of the appeal, the appellants/plaintiffs contended that their previous counsel was a fake advocate who failed to present their case properly, and hence they sought a remand. However, the appellate 5\26 https://www.mhc.tn.gov.in/judis S.A. No.422 of 2024court observed that regardless of the allegation against the previous counsel, the evidence and documents were properly presented, and the first defendant had submitted a detailed written statement.9. The appellate court also found that as per Exhibit B1, the first item of property is the self-acquired property of the first defendant and not ancestral. Therefore, the first defendant was legally entitled to execute Wills (Exhibits B5 and B6), which were proved in accordance with law. The appellate court confirmed the findings of the trial court and dismissed the appeal. Aggrieved by the concurrent findings of the courts below, the plaintiffs have preferred the present Second Appeal.10. The Learned Counsel for the appellants challenging the concurrent findings of the Courts below on following grounds: (i) Both the courts below miserably failed to note that the suit schedule properties are ancestral property through via the appellant grandfather one (Late) Nanjappa Gowder.(ii) Both the courts below miserably failed to note thatNanjappa 6\26 https://www.mhc.tn.gov.in/judis S.A. No.422 of 2024Gowdar purchased an immovable property on 14.07.1937 in S.F.No:846 & 851, an extent of 2.83 acres in Maruthur Village, MettupalayamTaluk (Doc. No: 1212/1937). Out of the income derived from the said property, he purchased the 1 suit schedule property in the name of his wife Krishnamal.(iii) Both the courts below miserably failed to note the II schedule property is the ancestral property of NanjappaGowder. Since the said Krishnammal is the wife, Patta was changed into her name for the purpose of House tax assessment only and she was not the absolute owner of the suit property. Hence, the legal heirs of NanjappaGowder @ NanjaiyaGowder have their due share in the said property i.e., II schedule property.(iv) Both the courts below miserably failed to note thatkrishnammal has no source of income, it fell in the ambit that belongs to the NanjappaGowdar's property.(v) Both the courts below miserably failed to note that the EX-P4 register partition deed Doc. No.2422 of 1991 dated 04.07.1991 on the file of sub-registrar office Mettupalayam in respect of suit schedule property between D1,D5, D6 the said partition deed clearly says that page No. 1, 7\26 https://www.mhc.tn.gov.in/judis S.A. No.422 of 2024Para 2 " ek;kpy; 1 yf;fkpl;ltUf;F fztuhd (nyl;) e";ira ft[lh; tifapy; gpJuh$;$pjtifapy; ghjpag;gl;Lk; 2.3.4 yf;fkpl;ltUf;F jfg;gdhh; gpJuh$;$pjtifapy; ghjpag;gl;Lk;cs;s brhj;Jf;fis ehk; vy;nyhUk; ghfk;gpupf;fhky; bghJthf mDgtpj;Jte;njhk;/"vi) Both the courts below miserably failed to note that Ex-P5 ThadaPaathiya Pathiram between D1,D5, and D6 " ek;kpy; 1.2.3 yf;fkpl;ltUf;F jfg;gd; tifapy; ghj;jpag;gl;g g{kpfSf;F kw;Wk; 4.5.6. yf;fkpl;ltUf;F gpJuh$;$pjtifapy; ghjpag;gl;l g{kpfSf;Fk; nghfturhpahdghij ,y;yhjjhYk; mtuth;fSf;F ghj;jpag;gl;l g{kpfSf;F nghftu Xh; jlj;ij Vw;gLj;jp bfhz;L mjd;goehk; ngha; te;J mDgtpj;J bfhz;oUf;fpnwhk;/" vii) Both the courts below miserably failed to note that The Ex-P4 partition deed and Ex-P5 Thada Pathiya Pathiramboth are executed among defendants same was register before sub-registrar office Mettupalayam. In that documents clearly have content about that property nature was an ancestral property which belongs to NanjayaGowdar. But in both courts never discussed about Ex-P4 and Ex P5.viii) Both the courts below miserably failed to note that the D1 Krishnammalfiled a suit in O.S.No.18/2009 on the file of District Munsif 8\26 https://www.mhc.tn.gov.in/judis S.A. No.422 of 2024Court seeking relief of an order to Set Aside the Ex-P4 partition deed dated 04.07.1991 bearing No. 2224/1991 in the books of Sub-Registrar of Mettupalayam. The said suit was dismissed on 17.07.2014.ix) Both the courts below miserably failed to note that Ex-P1 to P7 the suit schedule belongs to clearly shows (Late) NanjappaGowdar same was not consider by the lower courts.x) Both the courts below miserably failed to note that Ex-P4 and Ex P5 among themselves and admits that it was an ancestral property. Subsequently in Ex-D5 and D6 Krishnammal (D1) executed a will in favor of D2 to D5 contradicting the previous statement that it was self-acquired property.xi) Both the courts below miserably failed to note that the appellant trial court advocate namely Selvam was found as a fake advocate and an FIR has been registered against him in Cr.No. 603/2022 on 16.07.2022. Hence the appellant approaching the appellate court by raising the ground that he is a forged advocate but the first appellate court confirming the trial court judgment instead of remand back the trial court for re-trail.xii) Both the courts below miserably failed frame an issue regarding 9\26 https://www.mhc.tn.gov.in/judis S.A. No.422 of 2024self-acquired property of Krishnammal. While not framing an issue regarding this then, how the court comes to a conclusion that it is a self-acquired property of Krishnammal.11. This Second Appeal is admitted on the following substantial questions of law:"(A) Whether the judgment of the First Appellate Court is vitiated due to its failure to follow the mandate under Order XLI Rule 31 of the CPC?(B) Whether the Trial Court had the right to decide that the property is self-acquired when the defendants themselves admitted in Exhibits P4 and P5 that it was ancestral property?(C) Whether both the Courts below rightly held that the appellants have no right in the ancestral property?(D) Whether the Courts below erred in law in holding that Krishnamal was competent to execute the wills as if she owned the entire extent of the suit properties?"10\26 https://www.mhc.tn.gov.in/judis S.A. No.422 of 202412. The learned counsel for the appellants contends that both the Courts below erred in holding that the suit properties are the absolute properties of the first defendant, Krishnamal, without considering the fact that she herself admitted these properties to be ancestral in nature when she entered into a partition deed with her sons in the year 1991. Furthermore, she entered into a pathway agreement, in which she again admitted the ancestral nature of the suit properties. It was also argued that Krishnamal had no independent source of income, and the property purchased in her name in 1943 was done so by her husband, Nanjappa Gounder, from the income derived from properties he had purchased in 1937. Therefore, the property cannot be considered self-acquired by Krishnamal. Regarding Item 2, it was contended that it is not the absolute property of Krishnamal. It is a Natham Assignment site on which a house was constructed, and it was used and enjoyed by the joint family of Nanjappa Gowder. The patta was transferred in Krishnamal’s name only at the instance of her husband. Therefore, it is not her absolute property. Oral and documentary evidence submitted by the appellants to support this claim 11\26 https://www.mhc.tn.gov.in/judis S.A. No.422 of 2024were not properly appreciated by the Courts below. Hence, the appellant prays for setting aside the findings and allowing the appeal.13. In reply, the learned counsel for the respondents submitted that during the pendency of the proceedings, the first defendant Krishnamal died, and her legal heirs are already on record. The counsel argues that as per the Sale Deed (Exhibit B1), the property stands in the name of the first defendant. She also mortgaged the properties and enjoyed them as her absolute property during her lifetime. She purchased the properties out of her own income and acted as their absolute owner. Furthermore, she executed a Will in favour of defendants 2 to 5 through a Will dated 31.12.2009. Regarding the second item, it also stands in her name. As per Patta No. 228 issued by the Sub-Tahsildar for Natham tax, she is shown as the absolute owner. She also executed a Will dated 16.11.1997 in favour of D5. Therefore, the properties are not ancestral. The Courts below rightly dismissed the plaintiffs’ claim, and the appeal deserves to be dismissed as it lacks merit.14. Heard both sides.12\26 https://www.mhc.tn.gov.in/judis S.A. No.422 of 202415. Brief Facts of the Case:One Nanjappa Gowder @ Nanjaya Gowder had a wife and four sons, Eswaran, Velliangiri, Rangasamy, and Duraisamy, and one daughter, Sundarambal. Nanjappa Gounder died in the year 1967, leaving behind his wife, four sons, and one daughter as legal heirs. Among his children, Rangasamy died unmarried in 1987, and another son, Velliangiri, died in 1991, leaving behind his wife and son, who are the present plaintiffs. Eswaran also died, leaving behind his wife and daughters, defendants 2 to 4. Duraisamy is defendant 5. Sundarambal died, and her legal heirs have been impleaded as defendants 6 and 7. During the pendency of the suit, the first defendant Krishnamal (wife of Nanjappa Gowder) also passed away. The plaintiffs claim that the suit properties are the ancestral properties of Nanjappa Gowder. As legal heirs of Velliangiri, they are entitled to a 1/5th share. After the death of Velliangiri, the other defendants refused to give them their share, compelling them to file the suit for partition.16. The first defendant, Krishnamal, contested the suit, stating that 13\26 https://www.mhc.tn.gov.in/judis S.A. No.422 of 2024she had purchased the properties in 1943 and enjoyed them as her absolute property. She alleged that a partition deed was fraudulently obtained from her in 1991 by misrepresentation and that the said deed was not acted upon. She claimed to be the absolute owner. During the pendency of the proceedings, she died in 2014. After the filing of the suit, she had executed two Wills in favour of defendants 1 to 5, which are marked as Exhibits B4 and B5.17. The beneficiaries under the Wills claimed absolute ownership over the suit properties. The execution of the Wills and the testamentary capacity of the testator, Krishnamal, were sought to be proved through the evidence of PW2 to PW5. Relying on these Wills, the defendants denied the plaintiffs’ claim over the suit properties, contending that Krishnamal was the absolute owner. The learned counsel for the appellants pointed out that in 1937, Nanjappa Gowder had purchased 2.83 acres of land on 14.07.1937 in Old Survey Nos. 846 and 851, along with a well, adjacent to the first item of the suit properties. This is an admitted fact. According to the plaintiffs, from the income derived from the agricultural land purchased by 14\26 https://www.mhc.tn.gov.in/judis S.A. No.422 of 2024Nanjaya Gowder in 1937, he later purchased the property in the name of his wife, Krishnammal, in the year 1943 through the sale deed marked as Exhibit B1. However, this fact was denied by the first defendant, who claimed that she had purchased the properties out of her own savings. Admittedly, she was a housewife and there is no independent evidence to prove that she had any separate source of income.18. It is an undisputed fact that the first item of the property was mortgaged to third parties immediately after its purchase in 1943, and that the mortgage loan was redeemed only in the year 1961. The defendants relied on the endorsement made by D3 to prove this fact. During the trial, DW1 admitted that his father had purchased properties in the year 1937. However, he denied that the first item was purchased from the income derived from those properties, and denied that the property was purchased in the name of his mother, Krishnammal, with such income. Indeed there is no proof on the side of the contesting defendants that Krishnammal had separate source of income to purchase the properties.15\26 https://www.mhc.tn.gov.in/judis S.A. No.422 of 202419. The facts reveal that the properties purchased in the year 1943 through Exhibit A1 were mortgaged to a third party and the loan was discharged only in the year 1963 during the lifetime of Nanjaya Gowder. However, there is no proof that the said loan was discharged by Krishnamal herself. Furthermore, as rightly pointed out by the counsel for the plaintiffs/appellants, in the year 1991, a partition deed was executed among the first defendant, Krishnammal, and the other defendants. In that partition deed, the suit properties were described as ancestral properties, and shares were accordingly divided among the remaining sons of Nanjaya Gowder. After the said partition, Krishnamal and other defendants also executed a pathway agreement with a third party, in which the suit properties were again described as ancestral in nature. In her written statement, the first defendant claimed that she was unaware of the partition deed and that her signature was obtained by misrepresentation. She filed a suit in O.S. No. 18 of 2010 before the District Munsif, Mettupalayam, seeking to set aside the partition deed dated 04.07.1991 on the ground of misrepresentation. However, that suit was dismissed for default due to non-prosecution.16\26 https://www.mhc.tn.gov.in/judis S.A. No.422 of 202420. Until her death in 2014, the partition deed was never set aside. Even after the filing of the present suit, no effective steps were taken to invalidate the partition deed. Moreover, the Patta Transfer Order marked as Exhibit A7 reveals that the suit and other properties stood in joint patta in the names of Nanjaya Gowder and Krishnammal. After the partition, at the request of the defendants, the pattas were transferred in the names of Duraisamy, Eswaran, and Sundarambal. Patta Nos. 1619 and 2079 stood jointly in the names of Nanjaya Gowder and Krishnammal.21. Additionally, as per the House Tax Receipt marked as Exhibit A2 for Door No. 5/17, the second item of the suit property (a Natham house site) was assessed in the name of Nanjaya Gowder. Though the patta (Exhibit B4) stands in the name of Krishnammal, it pertains to a Natham Patta. The house was a joint family residence, where the first plaintiff’s father, Velliangiri, also lived until his demise. Therefore, the fact that the property stood in Krishnamal's name does not automatically render it her absolute property. The plaintiffs have clearly established through oral and 17\26 https://www.mhc.tn.gov.in/judis S.A. No.422 of 2024documentary evidence that it is joint family property. However, the courts below failed to properly appreciate this evidence.22. Moreover, based on the conduct of the parties and the recitals in the partition deed, it is evident that the suit properties were treated as joint family properties, enjoyed by Nanjaya Gowder, his wife Krishnamal, and their children as ancestral properties. Velliangiri, the father of the first plaintiff, was one of their sons. However, in the said partition deed, no share was allotted to his legal heirs, the plaintiffs herein, and no reason was stated for excluding them. During evidence, it was claimed by the defendants that the plaintiffs had left the family immediately after the demise of Velliangiri. However, this is disproved by the ration card marked as Exhibit A3. It shows that in the year 1998, the plaintiffs were living along with Krishnamal in the second item of the suit property. This fact, which goes against the claim of the defendants, was not appreciated by the courts below. The fact that the plaintiffs were residing in the ancestral house long after Velliangiri’s death contradicts the contention that they were excluded from the family or had abandoned the property.18\26 https://www.mhc.tn.gov.in/judis S.A. No.422 of 202423. Velliangiri died in the year 1981, and the ration card from 1998 shows that the plaintiffs were still living in the joint family house, thus proving their continued connection to the property. Therefore, the plaintiffs, with ample evidence, established their right and title over the suit properties and also proved that the properties are ancestral in nature. Accordingly, they are entitled to claim their rightful share in the property.24. To substantiate their claim, the plaintiffs relied on the following authorities:(i) 1955 SCC on line Madras 106, (ii) 1962 SCC on line Madras 363 and (iii) 1997 SCC 1998, which are all squarely applicable to the facts of the present case.25. Though the properties are claimed as self-acquired by the defendants, as discussed above, the first defendant, along with the other sons of Nanjaya Gowder, entered into a registered partition deed in which it was specifically declared that the suit properties are ancestral in nature. Krishnammal was also one of the signatories to that partition deed. Thereafter, they entered into a partition agreement (Exhibit B5), wherein Krishnammal again acknowledged that the suit properties are ancestral in 19\26 https://www.mhc.tn.gov.in/judis S.A. No.422 of 2024nature. This clearly proves that, though the sale deed stands in the name of Krishnammal (the first defendant), the plaintiffs have successfully established that the properties were purchased by her husband, Nanjaya Gowder, out of the income derived from the agricultural land purchased by him in the year 1937. The suit properties are situated adjacent to that agricultural land, and both were jointly possessed and enjoyed by Nanjaya Gowder along with the other family properties.26. This fact has also been admitted by DW-1 during his evidence. Furthermore, the recitals in Exhibit B4 and the registered partition deed declare that the suit properties are ancestral in nature. Therefore, the conduct of Krishnamal clearly proves that she treated the suit properties as ancestral, not as her separate property. This supports the plaintiffs’ case. However, the courts below failed to take proper note of these facts and erroneously held that the properties are the absolute properties of Krishnamal, without properly appreciating the oral and documentary evidence adduced by both parties. 20\26 https://www.mhc.tn.gov.in/judis S.A. No.422 of 202427. Normally, this Court would not interfere with the factual findings of the courts below. However, when such findings are perverse and based on improper appreciation of evidence, this Court is empowered to interfere. Accordingly, the findings rendered by the courts below are interfered with and are held to be perverse and based on improper appreciation of the evidence. 28. Further, the authorities relied upon by the respondents, (i) OSA No. 27 of 1980, R. Rajagopal Reddy and Others vs. Padmini Chandrasekaran and Others, at paragraph 13, stated as follows:“13. Then learned counsel for the legal representatives of the third defendant would hand on to the partitions and in particular to the partition of the year 1955 on the basis of which the subsequent partitions followed. One need not over stress the difference between a partition and a transfer. The basic proposition is, partition is not a transfer of property, it presupposes that each of the parties to a partition has an antecedent title to the subject-matter of partition, though its extent is not determined until actual partition. The problem comes because under the partition of the year 1955, the property had tome to he allocated to the branch of the son-in-law Peta Venkataraghava Reddy. To confer right and title on him to the properties of the family as a whole, learned counsel for the legal representatives of the third-defendant would advance a theory that Peta Venkataraghava Reddy was taken 21\26 https://www.mhc.tn.gov.in/judis S.A. No.422 of 2024in illattom adoption into the family and by virtue of that adoption he acquired a right in the properties and hence the partition could be validly effectuated. Learned counsel for the legal representatives of the third-defendant wanted us to initially climb a step to appreciate and accept this agreement of his, by saying that the second-defendant was a coparcener in a Hindu Undivided family and the acquisition of the property by him must be held to be as a coparcener in a Hindu Undivided family and further the property must be deemed to have been held for the benefit of the coparceners in the family and thus the property became an item available for division and Peta Venkataraghava Reddy having had come into the family by virtue of illattom adoption, acquiring a right in the properties of such a family, the partition of the year 1955 has got to be upheld. Leaving alone the case of illattom adoption of Peta Venkataraghava Reddy, the case that the acquisition by the second-defendant was the benefit of the coparceners in a Hindu Undivided Family was not at all conceived of and put forth in the pleadings and equally so it was not advanced through evidence The present case seems to be the result of desperation, and we are not prepared to countenance it."(ii) S.A. (MD) No. 1241 of 2011, A. Pandian vs. M. Nagappan, before the Madurai Bench of this Court, stated as follows:"5. The plaintiff has to prove his case and he has to fail or succeed only on the strength of his case. In the present case, the plaintiff affirmed the specific case of partition and allotment of 43.5 cents on the southern side in favour of his father. The father of the plaintiff, one Arumugam, is no more. The plaintiff has not even properly pleaded with reference to the details of previous ownership and how and when the alleged partition and the allotment of 43.5 cents in favour of 22\26 https://www.mhc.tn.gov.in/judis S.A. No.422 of 2024the plaintiff's father. No document was filed before the Courts below to show that the suit property was allotted to the plaintiff's father in partition. The partition presupposes the right of common ancestor. In the present case, what is the right of the plaintiff's father to claim partition and how he was entitled to claim the share in the property, has to be explained only by the plaintiff by specific pleading and evidence.6.In this case, such plea is totally absent. Without the foundation of the plaintiff's case, he has produced the patta that was issued just prior to the suit. The plaintiff also examined two other witnesses apart from himself."These two authorities do not support the facts of the respondents’ case.29. As rightly pointed out by the learned counsel for the appellants, the courts below failed to frame proper issues with respect to the nature of the suit properties. When the first defendant specifically claimed the properties were self-acquired, the courts ought to have framed an issue on that point. The failure to do so indicates that the mandate under Order XLI Rule 31 CPC was not followed. Accordingly, Substantial Question of Law A and B are answered in favour of the appellants.30. Regarding whether the courts below were right in holding that 23\26 https://www.mhc.tn.gov.in/judis S.A. No.422 of 2024Krishnammal was competent to execute the Will: since the properties have been found to be ancestral in nature, Krishnammal had no right to execute Wills (Exhibits B6 and B7) in favour of defendants 1 to 5. Hence, the findings of the courts below in respect of the Wills are set aside. Question of law C and D are answered accordingly.31. As discussed above, the plaintiffs have proved that the suit properties are ancestral in nature. Therefore, the findings rendered by the courts below are erroneous and are liable to be set aside. Accordingly, the appeal is allowed. The findings of the trial court are set aside. The suit properties are declared to be ancestral properties.32. As legal heirs of Velliangiri, the plaintiffs are entitled to their lawful share in the suit properties. Since both Nanjaya Gowder and Krishnamal died intestate, their legal heirs, Eswaran, Velliangiri, Duraisamy, and Sundarambal, are each entitled to one-fourth share in the entire suit properties. Accordingly, suit decreed, the plaintiffs are allotted with one-fourth share in the suit properties by way of preliminary degree. If 24\26 https://www.mhc.tn.gov.in/judis S.A. No.422 of 2024any final degree application is filed, the trial Court is directed to dispose the case within a period of three months from the date of findings of this order.33. Accordingly, the plaintiffs are allotted a one-fourth share in the suit properties by way of preliminary decree. If any final decree application is filed, the trial court is directed to dispose of the same within a period of three months from the date of receipt of a copy of this order. Consequently, the connected miscellaneous petitions are closed. There shall be no order as to costs. 23.07.2025Index : Yes/NoNeutral Citation : Yes/NoSpeaking/Non Speaking orderrriTo1. The Subordinate Judge, Mettupalayam.2.The District Munsif, Mettupalayam.3.The Section Officer, VR Section, High Court of Madras.25\26 https://www.mhc.tn.gov.in/judis S.A. No.422 of 2024T.V.THAMILSELVI, J.rriS.A.No.422 of 2024andCMP.Nos.12510 & 12511 of 202423.07.202526\26

S.A. No.422 of 20244. The first defendant, Krishnamal, claimed a 1/4th share in the suit properties, contending that the properties are the ancestral properties of one Nanjappa Gowder @ Nanjaya Gowder, who died leaving behind his wife and four sons, namely, the first defendant, Easwaran, Velliangiri, Rangasamy, and Duraisamy, and one daughter, Sundarambal. One of the sons, Velliangiri, predeceased, leaving behind the plaintiffs as his legal heirs. Upon the death of the said Velliangiri, the plaintiffs claimed entitlement to a 1/5th share in the entire suit properties. Since the other defendants, who are the brothers and sister of Velliangiri, were not willing to amicably partition the properties, the plaintiffs filed the suit seeking a valid partition.5. The first defendant contested the suit, stating that she is the wife of Nanjappa Gowder and that the entire suit properties, both Item 1 and Item 2, belong to her absolutely. She claimed to have purchased Item 1 in the year 1943 and stated that Item 2 also belongs to her, as reflected in the patta which stands in her name. She further stated that she was coerced into signing a partition deed in 1991 without her consent. Despite this, she 3\26 https://www.mhc.tn.gov.in/judis S.A. No.422 of 2024continued to enjoy the properties as her own and denied the plaintiffs' claim that the properties were ancestral.6. Defendants 2 to 5 also disputed the plaintiffs' claim, stating that the properties belonged to their mother. Though a partition deed was executed in 1991, they claimed it was never acted upon. The learned counsel for defendants 6 and 7 submitted that they had no objection to allotting a share to the plaintiffs. Subsequently, defendant 5 filed an additional statement claiming that the second item of the property belonged to the first defendant under the Natham Settlement Scheme. It was also stated that the first defendant had executed a Will in favour of defendant 5 in respect of the second item, and the first item was bequeathed to defendants 2 to 5 through a Will dated 31.12.2009. The first defendant passed away on 16.02.2014. As per the said Wills, defendants 2 to 5 are now in possession and enjoyment of the suit properties. Thus, they contended that the plaintiffs have no right or title in the properties.4\26 https://www.mhc.tn.gov.in/judis S.A. No.422 of 20247. The learned trial judge framed specific issues for consideration. Upon evaluating the evidence on record, the trial court found that as per the sale deed marked as Exhibit B1, dated 23.12.1943, Item 1 stands in the name of the first defendant. Additionally, Item 2 stands in her name as per Patta No. 228 (Exhibit B4). Therefore, the court concluded that both items are the absolute properties of the first defendant. During the pendency of the suit, the first defendant executed two Wills in favor of defendants 2 to 5. The execution of the Wills was proved by examining an attesting witness. Accordingly, the trial court held that the suit properties are the absolute properties of Krishnamal, and as per the Wills, she validly bequeathed them to defendants 2 to 5. Thus, the plaintiffs have no share in the suit properties, and the suit was dismissed.8. Aggrieved by the said judgment, the plaintiffs preferred A.S. No. 9 of 2023. The learned first appellate judge analyzed the facts and evidence afresh. During the hearing of the appeal, the appellants/plaintiffs contended that their previous counsel was a fake advocate who failed to present their case properly, and hence they sought a remand. However, the appellate 5\26 https://www.mhc.tn.gov.in/judis S.A. No.422 of 2024court observed that regardless of the allegation against the previous counsel, the evidence and documents were properly presented, and the first defendant had submitted a detailed written statement.9. The appellate court also found that as per Exhibit B1, the first item of property is the self-acquired property of the first defendant and not ancestral. Therefore, the first defendant was legally entitled to execute Wills (Exhibits B5 and B6), which were proved in accordance with law. The appellate court confirmed the findings of the trial court and dismissed the appeal. Aggrieved by the concurrent findings of the courts below, the plaintiffs have preferred the present Second Appeal.10. The Learned Counsel for the appellants challenging the concurrent findings of the Courts below on following grounds: (i) Both the courts below miserably failed to note that the suit schedule properties are ancestral property through via the appellant grandfather one (Late) Nanjappa Gowder.(ii) Both the courts below miserably failed to note thatNanjappa 6\26 https://www.mhc.tn.gov.in/judis S.A. No.422 of 2024Gowdar purchased an immovable property on 14.07.1937 in S.F.No:846 & 851, an extent of 2.83 acres in Maruthur Village, MettupalayamTaluk (Doc. No: 1212/1937). Out of the income derived from the said property, he purchased the 1 suit schedule property in the name of his wife Krishnamal.(iii) Both the courts below miserably failed to note the II schedule property is the ancestral property of NanjappaGowder. Since the said Krishnammal is the wife, Patta was changed into her name for the purpose of House tax assessment only and she was not the absolute owner of the suit property. Hence, the legal heirs of NanjappaGowder @ NanjaiyaGowder have their due share in the said property i.e., II schedule property.(iv) Both the courts below miserably failed to note thatkrishnammal has no source of income, it fell in the ambit that belongs to the NanjappaGowdar's property.(v) Both the courts below miserably failed to note that the EX-P4 register partition deed Doc. No.2422 of 1991 dated 04.07.1991 on the file of sub-registrar office Mettupalayam in respect of suit schedule property between D1,D5, D6 the said partition deed clearly says that page No. 1, 7\26 https://www.mhc.tn.gov.in/judis S.A. No.422 of 2024Para 2 " ek;kpy; 1 yf;fkpl;ltUf;F fztuhd (nyl;) e";ira ft[lh; tifapy; gpJuh$;$pjtifapy; ghjpag;gl;Lk; 2.3.4 yf;fkpl;ltUf;F jfg;gdhh; gpJuh$;$pjtifapy; ghjpag;gl;Lk;cs;s brhj;Jf;fis ehk; vy;nyhUk; ghfk;gpupf;fhky; bghJthf mDgtpj;Jte;njhk;/"vi) Both the courts below miserably failed to note that Ex-P5 ThadaPaathiya Pathiram between D1,D5, and D6 " ek;kpy; 1.2.3 yf;fkpl;ltUf;F jfg;gd; tifapy; ghj;jpag;gl;g g{kpfSf;F kw;Wk; 4.5.6. yf;fkpl;ltUf;F gpJuh$;$pjtifapy; ghjpag;gl;l g{kpfSf;Fk; nghfturhpahdghij ,y;yhjjhYk; mtuth;fSf;F ghj;jpag;gl;l g{kpfSf;F nghftu Xh; jlj;ij Vw;gLj;jp bfhz;L mjd;goehk; ngha; te;J mDgtpj;J bfhz;oUf;fpnwhk;/" vii) Both the courts below miserably failed to note that The Ex-P4 partition deed and Ex-P5 Thada Pathiya Pathiramboth are executed among defendants same was register before sub-registrar office Mettupalayam. In that documents clearly have content about that property nature was an ancestral property which belongs to NanjayaGowdar. But in both courts never discussed about Ex-P4 and Ex P5.viii) Both the courts below miserably failed to note that the D1 Krishnammalfiled a suit in O.S.No.18/2009 on the file of District Munsif 8\26 https://www.mhc.tn.gov.in/judis S.A. No.422 of 2024Court seeking relief of an order to Set Aside the Ex-P4 partition deed dated 04.07.1991 bearing No. 2224/1991 in the books of Sub-Registrar of Mettupalayam. The said suit was dismissed on 17.07.2014.ix) Both the courts below miserably failed to note that Ex-P1 to P7 the suit schedule belongs to clearly shows (Late) NanjappaGowdar same was not consider by the lower courts.x) Both the courts below miserably failed to note that Ex-P4 and Ex P5 among themselves and admits that it was an ancestral property. Subsequently in Ex-D5 and D6 Krishnammal (D1) executed a will in favor of D2 to D5 contradicting the previous statement that it was self-acquired property.xi) Both the courts below miserably failed to note that the appellant trial court advocate namely Selvam was found as a fake advocate and an FIR has been registered against him in Cr.No. 603/2022 on 16.07.2022. Hence the appellant approaching the appellate court by raising the ground that he is a forged advocate but the first appellate court confirming the trial court judgment instead of remand back the trial court for re-trail.xii) Both the courts below miserably failed frame an issue regarding 9\26 https://www.mhc.tn.gov.in/judis S.A. No.422 of 2024self-acquired property of Krishnammal. While not framing an issue regarding this then, how the court comes to a conclusion that it is a self-acquired property of Krishnammal.11. This Second Appeal is admitted on the following substantial questions of law:"(A) Whether the judgment of the First Appellate Court is vitiated due to its failure to follow the mandate under Order XLI Rule 31 of the CPC?(B) Whether the Trial Court had the right to decide that the property is self-acquired when the defendants themselves admitted in Exhibits P4 and P5 that it was ancestral property?(C) Whether both the Courts below rightly held that the appellants have no right in the ancestral property?(D) Whether the Courts below erred in law in holding that Krishnamal was competent to execute the wills as if she owned the entire extent of the suit properties?"10\26 https://www.mhc.tn.gov.in/judis S.A. No.422 of 202412. The learned counsel for the appellants contends that both the Courts below erred in holding that the suit properties are the absolute properties of the first defendant, Krishnamal, without considering the fact that she herself admitted these properties to be ancestral in nature when she entered into a partition deed with her sons in the year 1991. Furthermore, she entered into a pathway agreement, in which she again admitted the ancestral nature of the suit properties. It was also argued that Krishnamal had no independent source of income, and the property purchased in her name in 1943 was done so by her husband, Nanjappa Gounder, from the income derived from properties he had purchased in 1937. Therefore, the property cannot be considered self-acquired by Krishnamal. Regarding Item 2, it was contended that it is not the absolute property of Krishnamal. It is a Natham Assignment site on which a house was constructed, and it was used and enjoyed by the joint family of Nanjappa Gowder. The patta was transferred in Krishnamal’s name only at the instance of her husband. Therefore, it is not her absolute property. Oral and documentary evidence submitted by the appellants to support this claim 11\26 https://www.mhc.tn.gov.in/judis S.A. No.422 of 2024were not properly appreciated by the Courts below. Hence, the appellant prays for setting aside the findings and allowing the appeal.13. In reply, the learned counsel for the respondents submitted that during the pendency of the proceedings, the first defendant Krishnamal died, and her legal heirs are already on record. The counsel argues that as per the Sale Deed (Exhibit B1), the property stands in the name of the first defendant. She also mortgaged the properties and enjoyed them as her absolute property during her lifetime. She purchased the properties out of her own income and acted as their absolute owner. Furthermore, she executed a Will in favour of defendants 2 to 5 through a Will dated 31.12.2009. Regarding the second item, it also stands in her name. As per Patta No. 228 issued by the Sub-Tahsildar for Natham tax, she is shown as the absolute owner. She also executed a Will dated 16.11.1997 in favour of D5. Therefore, the properties are not ancestral. The Courts below rightly dismissed the plaintiffs’ claim, and the appeal deserves to be dismissed as it lacks merit.14. Heard both sides.12\26 https://www.mhc.tn.gov.in/judis S.A. No.422 of 202415. Brief Facts of the Case:One Nanjappa Gowder @ Nanjaya Gowder had a wife and four sons, Eswaran, Velliangiri, Rangasamy, and Duraisamy, and one daughter, Sundarambal. Nanjappa Gounder died in the year 1967, leaving behind his wife, four sons, and one daughter as legal heirs. Among his children, Rangasamy died unmarried in 1987, and another son, Velliangiri, died in 1991, leaving behind his wife and son, who are the present plaintiffs. Eswaran also died, leaving behind his wife and daughters, defendants 2 to 4. Duraisamy is defendant 5. Sundarambal died, and her legal heirs have been impleaded as defendants 6 and 7. During the pendency of the suit, the first defendant Krishnamal (wife of Nanjappa Gowder) also passed away. The plaintiffs claim that the suit properties are the ancestral properties of Nanjappa Gowder. As legal heirs of Velliangiri, they are entitled to a 1/5th share. After the death of Velliangiri, the other defendants refused to give them their share, compelling them to file the suit for partition.16. The first defendant, Krishnamal, contested the suit, stating that 13\26 https://www.mhc.tn.gov.in/judis S.A. No.422 of 2024she had purchased the properties in 1943 and enjoyed them as her absolute property. She alleged that a partition deed was fraudulently obtained from her in 1991 by misrepresentation and that the said deed was not acted upon. She claimed to be the absolute owner. During the pendency of the proceedings, she died in 2014. After the filing of the suit, she had executed two Wills in favour of defendants 1 to 5, which are marked as Exhibits B4 and B5.17. The beneficiaries under the Wills claimed absolute ownership over the suit properties. The execution of the Wills and the testamentary capacity of the testator, Krishnamal, were sought to be proved through the evidence of PW2 to PW5. Relying on these Wills, the defendants denied the plaintiffs’ claim over the suit properties, contending that Krishnamal was the absolute owner. The learned counsel for the appellants pointed out that in 1937, Nanjappa Gowder had purchased 2.83 acres of land on 14.07.1937 in Old Survey Nos. 846 and 851, along with a well, adjacent to the first item of the suit properties. This is an admitted fact. According to the plaintiffs, from the income derived from the agricultural land purchased by 14\26 https://www.mhc.tn.gov.in/judis S.A. No.422 of 2024Nanjaya Gowder in 1937, he later purchased the property in the name of his wife, Krishnammal, in the year 1943 through the sale deed marked as Exhibit B1. However, this fact was denied by the first defendant, who claimed that she had purchased the properties out of her own savings. Admittedly, she was a housewife and there is no independent evidence to prove that she had any separate source of income.18. It is an undisputed fact that the first item of the property was mortgaged to third parties immediately after its purchase in 1943, and that the mortgage loan was redeemed only in the year 1961. The defendants relied on the endorsement made by D3 to prove this fact. During the trial, DW1 admitted that his father had purchased properties in the year 1937. However, he denied that the first item was purchased from the income derived from those properties, and denied that the property was purchased in the name of his mother, Krishnammal, with such income. Indeed there is no proof on the side of the contesting defendants that Krishnammal had separate source of income to purchase the properties.15\26 https://www.mhc.tn.gov.in/judis S.A. No.422 of 202419. The facts reveal that the properties purchased in the year 1943 through Exhibit A1 were mortgaged to a third party and the loan was discharged only in the year 1963 during the lifetime of Nanjaya Gowder. However, there is no proof that the said loan was discharged by Krishnamal herself. Furthermore, as rightly pointed out by the counsel for the plaintiffs/appellants, in the year 1991, a partition deed was executed among the first defendant, Krishnammal, and the other defendants. In that partition deed, the suit properties were described as ancestral properties, and shares were accordingly divided among the remaining sons of Nanjaya Gowder. After the said partition, Krishnamal and other defendants also executed a pathway agreement with a third party, in which the suit properties were again described as ancestral in nature. In her written statement, the first defendant claimed that she was unaware of the partition deed and that her signature was obtained by misrepresentation. She filed a suit in O.S. No. 18 of 2010 before the District Munsif, Mettupalayam, seeking to set aside the partition deed dated 04.07.1991 on the ground of misrepresentation. However, that suit was dismissed for default due to non-prosecution.16\26 https://www.mhc.tn.gov.in/judis S.A. No.422 of 202420. Until her death in 2014, the partition deed was never set aside. Even after the filing of the present suit, no effective steps were taken to invalidate the partition deed. Moreover, the Patta Transfer Order marked as Exhibit A7 reveals that the suit and other properties stood in joint patta in the names of Nanjaya Gowder and Krishnammal. After the partition, at the request of the defendants, the pattas were transferred in the names of Duraisamy, Eswaran, and Sundarambal. Patta Nos. 1619 and 2079 stood jointly in the names of Nanjaya Gowder and Krishnammal.21. Additionally, as per the House Tax Receipt marked as Exhibit A2 for Door No. 5/17, the second item of the suit property (a Natham house site) was assessed in the name of Nanjaya Gowder. Though the patta (Exhibit B4) stands in the name of Krishnammal, it pertains to a Natham Patta. The house was a joint family residence, where the first plaintiff’s father, Velliangiri, also lived until his demise. Therefore, the fact that the property stood in Krishnamal's name does not automatically render it her absolute property. The plaintiffs have clearly established through oral and 17\26 https://www.mhc.tn.gov.in/judis S.A. No.422 of 2024documentary evidence that it is joint family property. However, the courts below failed to properly appreciate this evidence.22. Moreover, based on the conduct of the parties and the recitals in the partition deed, it is evident that the suit properties were treated as joint family properties, enjoyed by Nanjaya Gowder, his wife Krishnamal, and their children as ancestral properties. Velliangiri, the father of the first plaintiff, was one of their sons. However, in the said partition deed, no share was allotted to his legal heirs, the plaintiffs herein, and no reason was stated for excluding them. During evidence, it was claimed by the defendants that the plaintiffs had left the family immediately after the demise of Velliangiri. However, this is disproved by the ration card marked as Exhibit A3. It shows that in the year 1998, the plaintiffs were living along with Krishnamal in the second item of the suit property. This fact, which goes against the claim of the defendants, was not appreciated by the courts below. The fact that the plaintiffs were residing in the ancestral house long after Velliangiri’s death contradicts the contention that they were excluded from the family or had abandoned the property.18\26 https://www.mhc.tn.gov.in/judis S.A. No.422 of 202423. Velliangiri died in the year 1981, and the ration card from 1998 shows that the plaintiffs were still living in the joint family house, thus proving their continued connection to the property. Therefore, the plaintiffs, with ample evidence, established their right and title over the suit properties and also proved that the properties are ancestral in nature. Accordingly, they are entitled to claim their rightful share in the property.24. To substantiate their claim, the plaintiffs relied on the following authorities:(i) 1955 SCC on line Madras 106, (ii) 1962 SCC on line Madras 363 and (iii) 1997 SCC 1998, which are all squarely applicable to the facts of the present case.25. Though the properties are claimed as self-acquired by the defendants, as discussed above, the first defendant, along with the other sons of Nanjaya Gowder, entered into a registered partition deed in which it was specifically declared that the suit properties are ancestral in nature. Krishnammal was also one of the signatories to that partition deed. Thereafter, they entered into a partition agreement (Exhibit B5), wherein Krishnammal again acknowledged that the suit properties are ancestral in 19\26 https://www.mhc.tn.gov.in/judis S.A. No.422 of 2024nature. This clearly proves that, though the sale deed stands in the name of Krishnammal (the first defendant), the plaintiffs have successfully established that the properties were purchased by her husband, Nanjaya Gowder, out of the income derived from the agricultural land purchased by him in the year 1937. The suit properties are situated adjacent to that agricultural land, and both were jointly possessed and enjoyed by Nanjaya Gowder along with the other family properties.26. This fact has also been admitted by DW-1 during his evidence. Furthermore, the recitals in Exhibit B4 and the registered partition deed declare that the suit properties are ancestral in nature. Therefore, the conduct of Krishnamal clearly proves that she treated the suit properties as ancestral, not as her separate property. This supports the plaintiffs’ case. However, the courts below failed to take proper note of these facts and erroneously held that the properties are the absolute properties of Krishnamal, without properly appreciating the oral and documentary evidence adduced by both parties. 20\26 https://www.mhc.tn.gov.in/judis S.A. No.422 of 202427. Normally, this Court would not interfere with the factual findings of the courts below. However, when such findings are perverse and based on improper appreciation of evidence, this Court is empowered to interfere. Accordingly, the findings rendered by the courts below are interfered with and are held to be perverse and based on improper appreciation of the evidence. 28. Further, the authorities relied upon by the respondents, (i) OSA No. 27 of 1980, R. Rajagopal Reddy and Others vs. Padmini Chandrasekaran and Others, at paragraph 13, stated as follows:“13. Then learned counsel for the legal representatives of the third defendant would hand on to the partitions and in particular to the partition of the year 1955 on the basis of which the subsequent partitions followed. One need not over stress the difference between a partition and a transfer. The basic proposition is, partition is not a transfer of property, it presupposes that each of the parties to a partition has an antecedent title to the subject-matter of partition, though its extent is not determined until actual partition. The problem comes because under the partition of the year 1955, the property had tome to he allocated to the branch of the son-in-law Peta Venkataraghava Reddy. To confer right and title on him to the properties of the family as a whole, learned counsel for the legal representatives of the third-defendant would advance a theory that Peta Venkataraghava Reddy was taken 21\26 https://www.mhc.tn.gov.in/judis S.A. No.422 of 2024in illattom adoption into the family and by virtue of that adoption he acquired a right in the properties and hence the partition could be validly effectuated. Learned counsel for the legal representatives of the third-defendant wanted us to initially climb a step to appreciate and accept this agreement of his, by saying that the second-defendant was a coparcener in a Hindu Undivided family and the acquisition of the property by him must be held to be as a coparcener in a Hindu Undivided family and further the property must be deemed to have been held for the benefit of the coparceners in the family and thus the property became an item available for division and Peta Venkataraghava Reddy having had come into the family by virtue of illattom adoption, acquiring a right in the properties of such a family, the partition of the year 1955 has got to be upheld. Leaving alone the case of illattom adoption of Peta Venkataraghava Reddy, the case that the acquisition by the second-defendant was the benefit of the coparceners in a Hindu Undivided Family was not at all conceived of and put forth in the pleadings and equally so it was not advanced through evidence The present case seems to be the result of desperation, and we are not prepared to countenance it."(ii) S.A. (MD) No. 1241 of 2011, A. Pandian vs. M. Nagappan, before the Madurai Bench of this Court, stated as follows:"5. The plaintiff has to prove his case and he has to fail or succeed only on the strength of his case. In the present case, the plaintiff affirmed the specific case of partition and allotment of 43.5 cents on the southern side in favour of his father. The father of the plaintiff, one Arumugam, is no more. The plaintiff has not even properly pleaded with reference to the details of previous ownership and how and when the alleged partition and the allotment of 43.5 cents in favour of 22\26 https://www.mhc.tn.gov.in/judis S.A. No.422 of 2024the plaintiff's father. No document was filed before the Courts below to show that the suit property was allotted to the plaintiff's father in partition. The partition presupposes the right of common ancestor. In the present case, what is the right of the plaintiff's father to claim partition and how he was entitled to claim the share in the property, has to be explained only by the plaintiff by specific pleading and evidence.6.In this case, such plea is totally absent. Without the foundation of the plaintiff's case, he has produced the patta that was issued just prior to the suit. The plaintiff also examined two other witnesses apart from himself."These two authorities do not support the facts of the respondents’ case.29. As rightly pointed out by the learned counsel for the appellants, the courts below failed to frame proper issues with respect to the nature of the suit properties. When the first defendant specifically claimed the properties were self-acquired, the courts ought to have framed an issue on that point. The failure to do so indicates that the mandate under Order XLI Rule 31 CPC was not followed. Accordingly, Substantial Question of Law A and B are answered in favour of the appellants.30. Regarding whether the courts below were right in holding that 23\26 https://www.mhc.tn.gov.in/judis S.A. No.422 of 2024Krishnammal was competent to execute the Will: since the properties have been found to be ancestral in nature, Krishnammal had no right to execute Wills (Exhibits B6 and B7) in favour of defendants 1 to 5. Hence, the findings of the courts below in respect of the Wills are set aside. Question of law C and D are answered accordingly.31. As discussed above, the plaintiffs have proved that the suit properties are ancestral in nature. Therefore, the findings rendered by the courts below are erroneous and are liable to be set aside. Accordingly, the appeal is allowed. The findings of the trial court are set aside. The suit properties are declared to be ancestral properties.32. As legal heirs of Velliangiri, the plaintiffs are entitled to their lawful share in the suit properties. Since both Nanjaya Gowder and Krishnamal died intestate, their legal heirs, Eswaran, Velliangiri, Duraisamy, and Sundarambal, are each entitled to one-fourth share in the entire suit properties. Accordingly, suit decreed, the plaintiffs are allotted with one-fourth share in the suit properties by way of preliminary degree. If 24\26 https://www.mhc.tn.gov.in/judis S.A. No.422 of 2024any final degree application is filed, the trial Court is directed to dispose the case within a period of three months from the date of findings of this order.33. Accordingly, the plaintiffs are allotted a one-fourth share in the suit properties by way of preliminary decree. If any final decree application is filed, the trial court is directed to dispose of the same within a period of three months from the date of receipt of a copy of this order. Consequently, the connected miscellaneous petitions are closed. There shall be no order as to costs. 23.07.2025Index : Yes/NoNeutral Citation : Yes/NoSpeaking/Non Speaking orderrriTo1. The Subordinate Judge, Mettupalayam.2.The District Munsif, Mettupalayam.3.The Section Officer, VR Section, High Court of Madras.25\26 https://www.mhc.tn.gov.in/judis S.A. No.422 of 2024T.V.THAMILSELVI, J.rriS.A.No.422 of 2024andCMP.Nos.12510 & 12511 of 202423.07.202526\26