Madrasdated High Court · 2025

JUDGMENTThis Second Appeal has been filed to set aside the judgment and decree of IV Additional District Judge, Ponneri, Thiruvallur District in A.S.No.21 of 2012 dated 09.01.2015 reversing the judgment and decree in O.S.No.8 of 2006 dated 18.08.2009 on the file of the Subordinate Judge, Ponneri, Thiruvallur District.

2. Heard Mr.M.Thamizhavel, learned counsel for the appellants and Mr.J.Titus Knock, learned counsel for the first respondent and perused the materials available on record.

3. The appellants are the defendants 1,2,5 & 6 against whom the plaintiff has filed a suit for partition. The Trial Court has dismissed the suit. On the First Appeal preferred by the plaintiff, the First Appellate Court allowed the First Appeal and passed a preliminary decree for 1/5th share of the plaintiff. Aggrieved over that the defendants 1,2,5 and 6 have preferred this Second Appeal. 2/13 https://www.mhc.tn.gov.in/judis

4. The short facts pleaded in the plaint are as follows:The first defendant is the brother of the plaintiff and the second defendant is the wife of the another deceased brother Namachivayam. The third defendant is the mother of the plaintiff and fourth defendant is the sister of the plaintiff. The defendants 5 and 6 are the daughters of the second defendant. The suit property was originally belonged to the plaintiff's paternal grandmother Valliammal. She had purchased the suit property in the year 1959. The father of the plaintiff is the only legal heir of Valliammal. Valliammal died in the year 1970. After her demise, the plaintiff's father and her paternal grandfather Poruran Chettiar had inherited Valliammmal's property as her legal heirs. The plaintiff's father Arumugam Chettiar also died in the year 1971. The plaintiff, one sister and two brothers along with her mother are the legal heirs of the deceased father Arumugam Chettiar. 4.

1. The grandfather of the plaintiff also died in the year 1992. As the legal heirs of the deceased Arumugam Chettiar, the plaintiff and her two brothers and one sister along with the mother had inherited the suit property and they were in enjoyment. The plaintiff has got 1/5 undivided share in the 3/13 https://www.mhc.tn.gov.in/judis suit property. But the defendants refused to come forward for partition. Hence, the plaintiff had issued a pre-litigation notice and filed a suit for partition.

5. The averments made in the written statement filed by D1 and D2 are as follows:It is true that the suit property was originally belonged to one Valliammal and the plaintiff's father Arumugam Chettiar is her only son. After the demise of Valliammal, her husband and son had inherited the property as her legal heirs. The relationship of the defendants 1 and 2 with the plaintiff is also admitted. The fact that the other defendants were also the legal heirs of the deceased Arumugam Chettiar is not denied. But the plaintiff had filed a suit without disclosing the Will executed by Poruran Chettiar on 22.04.1989 in respect of the suit property. According to the Will, the property in Sirupazhaverkadu village has been given to the plaintiff and her sister. The suit property belonged to the first defendant and the second defendant's husband. The plaintiff has got no right over the suit property. 4/13 https://www.mhc.tn.gov.in/judis

6. On hearing both sides and on the basis of the above pleadings, the Trial Court has framed the following issues:"1. tof;F epiyf;fj;jf;fjh?2. tof;fpw;F Njitahd jug;gpdh;fis Nrh;f;fhjjhy; tof;F ghjpg;G mile;Js;sjh?3. tof;F %yk; cs;sjh?4.tof;fpw;Fhpa ePjpkd;w Kj;jpiuf;fl;lzk; nrYj;jg;gl;Ls;sjh?5. jhthtpy; NfhhpAs;sthW thjpf;F ghfk; fpilf;ff;$bajh?6. 22.04.1989 Njjpapl;l capy; Vw;gLj;jg;gl;ljh? mjd;gb ghfk; gphpf;ff;$bajh?7. thjpf;F fpilf;ff;$ba ,ju ghpfhuk; vd;d?"

7. During the course of the trial, on the side of the plaintiff, P.W.1 has been examined and Exs.A1 to A11 were marked. On the side of the defendants, D.W.1 has been examined and Ex.B1 was marked.

8. At the conclusion of the trial and on considering the evidence on record, the Trial Court has dismissed the suit. The First Appeal preferred by the plaintiff was allowed and the suit was decreed and the preliminary 5/13 https://www.mhc.tn.gov.in/judis decree has been passed in respect of 1/5 share of the plaintiff. Aggrieved over the same, the defendants 1,2, 5 and 6 have preferred this Second Appeal by raising the following substantial questions of law:"

1.Whether the 1st Appellate Court is correct in allowing the A.S.No.21/2012 by taking the view that the Will dated 22.04.1989 executed by Poruran Chettiar is not valid, even though the respondent / plaintiff is not seeking any relief of declaration that said Will dated 22.04.1989 as null and void?

2. Whether the 1st Appellate Court is correct by allowing the A.S.No.21/2012 by taking the view that respondent / plaintiff proved that the Will dated 22.04.1989 is not a valid document?"

9. The learned counsel for the appellants / defendants 1,2,5 & 6 submitted that the First Appellate Court has not properly appreciated the fact that Valliammal's husband Poruran Chettiar has executed a Will in respect of the property purchased by him along with the suit property and that the plaintiff had suppressed the same. It is further submitted that the plaintiff herself had admitted during the cross examination that the property purchased by Valliammal through Ex.A1 sale deed has been partitioned 6/13 https://www.mhc.tn.gov.in/judis between the sharers and her mother has also got her share accordingly. So it is claimed by the appellants that Poruran Chettiar had executed a Will in respect of the suit property after the demise of Valliammal as her legal heir and hence, the plaintiff does not have any right over the suit property. So the claim of the appellants / defendants 1,2,5 & 6 is that as per the Will, Poruran Chettiar had bequeathed the suit property in favour of his two grandsons viz., Namachivaya Chettiar and Palani Chettiar and hence, the first defendant and the legal heirs of Namachivaya Chettiar alone are entitled to the suit property. It is further submitted that the superstructure alone has been purchased by Valliammal and the land belongs to the temple.

10. The learned counsel for the first respondent submitted that the plaintiff has denied the Will dated 22.04.1989 which is marked as Ex.B1. When the title in favour of Valliammal has been admitted by the defendants in the written statement, they cannot plead that Poruran Chettiar had right over the suit property and that he had executed the Will. Poruran Chettiar did not have title over the suit property when he bequeathed the suit property in favour of his two grandsons and the Will has also not been proved in accordance with law.7/13 https://www.mhc.tn.gov.in/judis

11. Despite the defendants have admitted the title in favour of Valliammal and that Valliammal is the original owner of the suit property, it is claimed that Valliammal's husband Poruran Chettiar had executed the Will in favour of two grandsons viz., Palani and Namachivayam (sons of Arumugam Chettiar). When the suit property belonged to Valliammal, Poruran Chettiar cannot get any right to execute any Will in respect of the property belonged to his wife. Even if it is presumed that Poruran Chettiar is the husband of Valliammal and Valliammal predeceased him, he is one of the legal heirs and hence, he had inherited the suit property in his capacity as legal heir of Valliammal, he cannot execute the Will in respect of the whole of the suit property.

12. The learned counsel for the appellants submitted that the suit property has been purchased in the name of Valliammal. But with the financial arrangement made by her husband Poruran Chettiar. Such a plea cannot be introduced at the stage of the Second Appeal when the defendants themselves had admitted in the written statement that the property belonged 8/13 https://www.mhc.tn.gov.in/judis to Valliammal. It is not the case of the defendants that the sale deed in favour of Valliammal is a sham and nominal one.

13. A categorical admission made in the written statement that after the demise of Valliammal, the legal heirs have inherited the suit property and they were in enjoyment of the same. Having pleaded so, the defendants cannot introduce a new case and state that Poruran Chettiar has executed the Will Ex.B1. Even if Ex.B1 is presumed to be true, the exectant of the Will viz., Poruran Chettiar did not have any right to bequeath the whole of the suit property in favour of his grand sons Palani and Namachivayam and further, the Will has not been proved in accordance with law and in the absence of examination of the attestor of the Will, it cannot even be received as an evidence during the trial.

14. Though the Trial Court has omitted to deal with the above legal issues, it appears that the First Appellate Court had made a detailed discussion on these issues and rendered a finding that the executant of the Will Poruran Chettiar did not have any right to execute the Will in respect of the suit property. It is submitted that the superstructure alone was 9/13 https://www.mhc.tn.gov.in/judis purchased by Valliammal and the land belonged to the temple. The property purchased by Valliammal alone can be inherited by her legal heirs after her demise and the share of the plaintiff in respect of the suit property also relate to the property purchased by Valliammal through Ex.A11. So there cannot be any quarrel on this aspect.

15. If the property did not belong to Valliammal and it actually belonged to the temple, the plaintiff ought to have impleaded the temple as a party to the proceedings. However, the risk goes with the plaintiff. Because the decree if any obtained by the plaintiff inclusive of the vacant site will not bind the interest of the temple which have the title over the vacant site.

16. As against the defendants, the plaintiff is entitled to 1/5 share in respect of the property purchased by Valliammal. As the Will has not been proved and the executant of the Will also did not have title to deal with the property purchased by his wife Valliammal, the defence raised by the defendants has been rightly rejected by the First Appellate Court. The preliminary decree passed by the First Appellate Court by way of allowing the First Appeal would only bind the parties to the suit and not the temple 10/13 https://www.mhc.tn.gov.in/judis who is said to be the owner of the vacant site. Accordingly, the substantial questions of law are answered against the appellants.

17. In view of the above stated reasons, this Second Appeal is dismissed by confirming the judgment and decree of the First Appellate Court passed in A.S.No.21 of 2012 dated 09.01.2015 and the suit is decreed in favour of the plaintiff. No costs. Consequently, connected miscellaneous petition is closed. 03.01.2025Speaking order / Non Speaking OrderIndex: Yes / NoNeutral Citation: Yes / Nogsk11/13 https://www.mhc.tn.gov.in/judis To1.IV Additional District Judge, Ponneri, Thiruvallur District.

2.The Subordinate Judge, Ponneri, Thiruvallur District. 12/13 https://www.mhc.tn.gov.in/judis R.N.MANJULA , J. gskS.A.No.292 of 2016 andC.M.P.No.5446 of 201603.01.202513/13

JUDGMENTThis Second Appeal has been filed to set aside the judgment and decree of IV Additional District Judge, Ponneri, Thiruvallur District in A.S.No.21 of 2012 dated 09.01.2015 reversing the judgment and decree in O.S.No.8 of 2006 dated 18.08.2009 on the file of the Subordinate Judge, Ponneri, Thiruvallur District.

2. Heard Mr.M.Thamizhavel, learned counsel for the appellants and Mr.J.Titus Knock, learned counsel for the first respondent and perused the materials available on record.

3. The appellants are the defendants 1,2,5 & 6 against whom the plaintiff has filed a suit for partition. The Trial Court has dismissed the suit. On the First Appeal preferred by the plaintiff, the First Appellate Court allowed the First Appeal and passed a preliminary decree for 1/5th share of the plaintiff. Aggrieved over that the defendants 1,2,5 and 6 have preferred this Second Appeal. 2/13 https://www.mhc.tn.gov.in/judis

4. The short facts pleaded in the plaint are as follows:The first defendant is the brother of the plaintiff and the second defendant is the wife of the another deceased brother Namachivayam. The third defendant is the mother of the plaintiff and fourth defendant is the sister of the plaintiff. The defendants 5 and 6 are the daughters of the second defendant. The suit property was originally belonged to the plaintiff's paternal grandmother Valliammal. She had purchased the suit property in the year 1959. The father of the plaintiff is the only legal heir of Valliammal. Valliammal died in the year 1970. After her demise, the plaintiff's father and her paternal grandfather Poruran Chettiar had inherited Valliammmal's property as her legal heirs. The plaintiff's father Arumugam Chettiar also died in the year 1971. The plaintiff, one sister and two brothers along with her mother are the legal heirs of the deceased father Arumugam Chettiar. 4.

1. The grandfather of the plaintiff also died in the year 1992. As the legal heirs of the deceased Arumugam Chettiar, the plaintiff and her two brothers and one sister along with the mother had inherited the suit property and they were in enjoyment. The plaintiff has got 1/5 undivided share in the 3/13 https://www.mhc.tn.gov.in/judis suit property. But the defendants refused to come forward for partition. Hence, the plaintiff had issued a pre-litigation notice and filed a suit for partition.

5. The averments made in the written statement filed by D1 and D2 are as follows:It is true that the suit property was originally belonged to one Valliammal and the plaintiff's father Arumugam Chettiar is her only son. After the demise of Valliammal, her husband and son had inherited the property as her legal heirs. The relationship of the defendants 1 and 2 with the plaintiff is also admitted. The fact that the other defendants were also the legal heirs of the deceased Arumugam Chettiar is not denied. But the plaintiff had filed a suit without disclosing the Will executed by Poruran Chettiar on 22.04.1989 in respect of the suit property. According to the Will, the property in Sirupazhaverkadu village has been given to the plaintiff and her sister. The suit property belonged to the first defendant and the second defendant's husband. The plaintiff has got no right over the suit property. 4/13 https://www.mhc.tn.gov.in/judis

6. On hearing both sides and on the basis of the above pleadings, the Trial Court has framed the following issues:"1. tof;F epiyf;fj;jf;fjh?2. tof;fpw;F Njitahd jug;gpdh;fis Nrh;f;fhjjhy; tof;F ghjpg;G mile;Js;sjh?3. tof;F %yk; cs;sjh?4.tof;fpw;Fhpa ePjpkd;w Kj;jpiuf;fl;lzk; nrYj;jg;gl;Ls;sjh?5. jhthtpy; NfhhpAs;sthW thjpf;F ghfk; fpilf;ff;$bajh?6. 22.04.1989 Njjpapl;l capy; Vw;gLj;jg;gl;ljh? mjd;gb ghfk; gphpf;ff;$bajh?7. thjpf;F fpilf;ff;$ba ,ju ghpfhuk; vd;d?"

7. During the course of the trial, on the side of the plaintiff, P.W.1 has been examined and Exs.A1 to A11 were marked. On the side of the defendants, D.W.1 has been examined and Ex.B1 was marked.

8. At the conclusion of the trial and on considering the evidence on record, the Trial Court has dismissed the suit. The First Appeal preferred by the plaintiff was allowed and the suit was decreed and the preliminary 5/13 https://www.mhc.tn.gov.in/judis decree has been passed in respect of 1/5 share of the plaintiff. Aggrieved over the same, the defendants 1,2, 5 and 6 have preferred this Second Appeal by raising the following substantial questions of law:"

1.Whether the 1st Appellate Court is correct in allowing the A.S.No.21/2012 by taking the view that the Will dated 22.04.1989 executed by Poruran Chettiar is not valid, even though the respondent / plaintiff is not seeking any relief of declaration that said Will dated 22.04.1989 as null and void?

2. Whether the 1st Appellate Court is correct by allowing the A.S.No.21/2012 by taking the view that respondent / plaintiff proved that the Will dated 22.04.1989 is not a valid document?"

9. The learned counsel for the appellants / defendants 1,2,5 & 6 submitted that the First Appellate Court has not properly appreciated the fact that Valliammal's husband Poruran Chettiar has executed a Will in respect of the property purchased by him along with the suit property and that the plaintiff had suppressed the same. It is further submitted that the plaintiff herself had admitted during the cross examination that the property purchased by Valliammal through Ex.A1 sale deed has been partitioned 6/13 https://www.mhc.tn.gov.in/judis between the sharers and her mother has also got her share accordingly. So it is claimed by the appellants that Poruran Chettiar had executed a Will in respect of the suit property after the demise of Valliammal as her legal heir and hence, the plaintiff does not have any right over the suit property. So the claim of the appellants / defendants 1,2,5 & 6 is that as per the Will, Poruran Chettiar had bequeathed the suit property in favour of his two grandsons viz., Namachivaya Chettiar and Palani Chettiar and hence, the first defendant and the legal heirs of Namachivaya Chettiar alone are entitled to the suit property. It is further submitted that the superstructure alone has been purchased by Valliammal and the land belongs to the temple.

10. The learned counsel for the first respondent submitted that the plaintiff has denied the Will dated 22.04.1989 which is marked as Ex.B1. When the title in favour of Valliammal has been admitted by the defendants in the written statement, they cannot plead that Poruran Chettiar had right over the suit property and that he had executed the Will. Poruran Chettiar did not have title over the suit property when he bequeathed the suit property in favour of his two grandsons and the Will has also not been proved in accordance with law.7/13 https://www.mhc.tn.gov.in/judis

11. Despite the defendants have admitted the title in favour of Valliammal and that Valliammal is the original owner of the suit property, it is claimed that Valliammal's husband Poruran Chettiar had executed the Will in favour of two grandsons viz., Palani and Namachivayam (sons of Arumugam Chettiar). When the suit property belonged to Valliammal, Poruran Chettiar cannot get any right to execute any Will in respect of the property belonged to his wife. Even if it is presumed that Poruran Chettiar is the husband of Valliammal and Valliammal predeceased him, he is one of the legal heirs and hence, he had inherited the suit property in his capacity as legal heir of Valliammal, he cannot execute the Will in respect of the whole of the suit property.

12. The learned counsel for the appellants submitted that the suit property has been purchased in the name of Valliammal. But with the financial arrangement made by her husband Poruran Chettiar. Such a plea cannot be introduced at the stage of the Second Appeal when the defendants themselves had admitted in the written statement that the property belonged 8/13 https://www.mhc.tn.gov.in/judis to Valliammal. It is not the case of the defendants that the sale deed in favour of Valliammal is a sham and nominal one.

13. A categorical admission made in the written statement that after the demise of Valliammal, the legal heirs have inherited the suit property and they were in enjoyment of the same. Having pleaded so, the defendants cannot introduce a new case and state that Poruran Chettiar has executed the Will Ex.B1. Even if Ex.B1 is presumed to be true, the exectant of the Will viz., Poruran Chettiar did not have any right to bequeath the whole of the suit property in favour of his grand sons Palani and Namachivayam and further, the Will has not been proved in accordance with law and in the absence of examination of the attestor of the Will, it cannot even be received as an evidence during the trial.

14. Though the Trial Court has omitted to deal with the above legal issues, it appears that the First Appellate Court had made a detailed discussion on these issues and rendered a finding that the executant of the Will Poruran Chettiar did not have any right to execute the Will in respect of the suit property. It is submitted that the superstructure alone was 9/13 https://www.mhc.tn.gov.in/judis purchased by Valliammal and the land belonged to the temple. The property purchased by Valliammal alone can be inherited by her legal heirs after her demise and the share of the plaintiff in respect of the suit property also relate to the property purchased by Valliammal through Ex.A11. So there cannot be any quarrel on this aspect.

15. If the property did not belong to Valliammal and it actually belonged to the temple, the plaintiff ought to have impleaded the temple as a party to the proceedings. However, the risk goes with the plaintiff. Because the decree if any obtained by the plaintiff inclusive of the vacant site will not bind the interest of the temple which have the title over the vacant site.

16. As against the defendants, the plaintiff is entitled to 1/5 share in respect of the property purchased by Valliammal. As the Will has not been proved and the executant of the Will also did not have title to deal with the property purchased by his wife Valliammal, the defence raised by the defendants has been rightly rejected by the First Appellate Court. The preliminary decree passed by the First Appellate Court by way of allowing the First Appeal would only bind the parties to the suit and not the temple 10/13 https://www.mhc.tn.gov.in/judis who is said to be the owner of the vacant site. Accordingly, the substantial questions of law are answered against the appellants.

17. In view of the above stated reasons, this Second Appeal is dismissed by confirming the judgment and decree of the First Appellate Court passed in A.S.No.21 of 2012 dated 09.01.2015 and the suit is decreed in favour of the plaintiff. No costs. Consequently, connected miscellaneous petition is closed. 03.01.2025Speaking order / Non Speaking OrderIndex: Yes / NoNeutral Citation: Yes / Nogsk11/13 https://www.mhc.tn.gov.in/judis To1.IV Additional District Judge, Ponneri, Thiruvallur District.

2.The Subordinate Judge, Ponneri, Thiruvallur District. 12/13 https://www.mhc.tn.gov.in/judis R.N.MANJULA , J. gskS.A.No.292 of 2016 andC.M.P.No.5446 of 201603.01.202513/13