(Prayer: First Appeal is filed under Section 96 of the Civil Procedure Code r/w Order 41 Rule 1 of CPC, to set aside the judgment and decree dated 23.12.2016 passed in O.S.No.119 of 2011 on the file of the IV Additional District Court, Coimbatore.)

1. The unsuccessful plaintiff in a suit for partition is the appellant. For the sake of convenience, the parties are referred to as per their rank in the suit.

2. According to the plaintiff, the plaintiff is the daughter of first defendant. The second defendant is the brother of the plaintiff and son of the first defendant. The defendants 3 and 4 are purchasers of suit 'B' schedule property from the second defendant. According to the plaintiff, the suit properties are ancestral properties of the family and the same was originally allotted to the share of the plaintiff's father's, father Sennimalai Gounder in a family partition dated 01.02.1957 involving said Sennimalai Gounder, his brother namely Ramasamy Gounder and minor Sennimalai Gounder. The suit 'A' and 'B' schedule properties were allotted to the share of Sennimalai Gounder. Subsequently, there was another partition in the family on 03.12.1980, whereunder, the properties were divided among Ponnusamy (father of plaintiff and second defendant), Sennimalai Gounder and Velusamy Gounder (another son of Sennimalai Gounder and brother of Ponnusamy Gounder). In the said partition, the properties described in ‘A’ schedule to partition deed was allotted to Sennimalai Gounder for life with vested reminder to Ponnusamy. The ‘B’ schedule to partition deed was absolutely allotted to the share of Ponnusamy. The above said Sennimalai Gounder died on 30.03.1986 and after his death, the plaintiff's father Ponnusamy got suit 'A' and 'B' schedule properties absolutely as per the terms of partition deed dated 03.12.1980. It was also stated that suit 'C' schedule property was purchased in the name of Ponnusamy by his father, Sennimalai Gounder out of income from ancestral property. The plaintiff's father Ponnusamy was suffering from cancer in the year 1995 and he died on 29.07.1995. After death of plaintiff's father, the plaintiff and second defendant were entitled to 4/9th share each in the suit properties and the first defendant, mother of the plaintiff and the second defendant is entitled to 1/9th share. It was also stated that the plaintiff's father had no right to execute any document in respect of plaintiff’s interest in the joint family property. The defendants 3 and 4 purchased suit 'B' schedule property from the second defendant. It was also stated that the second defendant sold the suit 'B' schedule property suppressing the 4/9 share available to the plaintiff in favour of defendants 3 and 4 and they were also impleaded as party to the suit.

3. The defendants 1 and 2 filed written statement and resisted the suit by contending that the suit 'C' schedule property was self acquired property of Ponnusamy. It was also stated that the suit 'A' and 'B' schedule properties were allotted to the share of Sennimalai Gounder with life estate and Ponnusamy was given vested remainder. As per the terms of said partition deed Ponnusamy got the property exclusively and enjoyed the same as absolute owner after death of Sennimalai Gounder. The defendants also raised a plea that Ponnusamy out of his free Will, executed a Will in favour of defendants 1 and 2 on 20.07.1995 As per the terms of the Will, the suit 'C' schedule property was bequeathed in favour of first defendant, his wife and suit 'A' and 'B' schedule properties were bequeathed in favour second defendant, his son. It was also stated that the defendants 1 and 2 celebrated the marriage of the plaintiff by providing 22 Sovereigns of gold with all kinds of Seervarisai. In the year 2004, the second defendant settled a portion of suit property, he got under the Will in favour of plaintiff and she accepted the same. The suit 'B' schedule properties were sold to the defendants 3 and 4 to meet family debt. It was also pleaded that after partition of the property in the year 1980, the joint family property had lost its ancestral character and it was treated as a separate property of Ponnusamy.

4. The defendants 3 and 4 filed a written statement, additional written statement and contended that the plaintiff had no right over the suit 'B' schedule property in view of Will executed by Ponnusamy and therefore, the suit was laid by the plaintiff without any legal basis.

5. The plaintiff filed a reply statement denying the execution of Will pleaded by the defendant and sought for passing of preliminary decree for partition as prayed for.

6. Based on these pleadings, the learned trial Judge framed the following issues:

                   (i). Whether 'C' schedule property was purchased out of the joint family nucleus by Sennimalai Gounder in the name of Ponnusamy gounder?

                   (ii). binding? Whether the Will dated 20.07.1995 is true valid and

                   (iii). Whether the sale in favour of 3 is valid under law? rd defendant of 'B' schedule

                   (iv). Whether the plaintiff is in joint possession of the suit property?

                   (v). Whether the plaintiff is entitled for partition?

                   (vi). To what other relief?

7. Additional Issue Nos.1 and 2:

                   (i) Whether the plaintiff is entitled to ½ share in the suit properties after the death of D1?

                   (ii) Whether the plaintiff is entitled for any mesne profits after the death of D1?

8. Before the trial Court, the plaintiff was examined as PW.1 and six documents were marked on her side as Exs.A1 to A6, on behalf of the defendants, the second defendant was examined as DW.1, one of the attestor to Will executed by Ponnusamy was examined as DW.2 and the 4th defendant, purchaser of the 'B' schedule property was examined as DW.3. On behalf of the defendant, thirty eight documents were marked as Exs.B1 to B38.

9. On appreciation of oral and documentary evidence available on record, the trial Court came to the conclusion that the suit 'C' schedule property was self acquired property of Ponnusamy and the Will executed by Ponnusamy was duly proved. The Trial Court also found that after partition in the year 1980, the suit 'A' and 'B' schedule properties lost its ancestral character and hence not available for partition. As a necessary consequence, the suit was dismissed by the trial Court. Aggrieved by the same, the plaintiff has come before this Court.

10. The learned counsel appearing for the appellant/plaintiff would submit that the trial Court committed serious error in coming to the conclusion that the partition of the year 1980, destroyed the character of the ancestral property. According to him, even after partition, the property continued to be the ancestral property in the hands of Ponnusamy and his descendants. Therefore, as a daugther, appellant is entitled to a legitimate share in suit 'A' and 'B' schedule properties, as per the Tamil Nadu Hindu Succession Amendment Act, 1 of 1990 and Central Act 39 of 2005. The learned counsel further submitted that the suit 'C' schedule property was purchased by Sennimalai Gounder out of income from suit 'A' and 'B' schedule properties in the name of Ponnusamy and therefore, the suit 'C' schedule property should have been treated as a joint family property by the trial Court. He also submitted that Ponnusamy was suffering from cancer and he died within nine days from the date of execution of alleged Will relied on by the defendants and there was no reason to exclude the plaintiff, who is one of his daughters and therefore, the Will relied on by the defendants was surrounded by suspicious circumstances. Therefore, he sought for setting aside the judgment and decree passed by the trial Court.

11. The learned counsel appearing for the respondent/defendant contended that in the year 1980, there was a partition in the family involving plaintiff's father Ponnusamy, his father Sennimalai Gounder and brother Velusamy and hence the property allotted to the share of Ponnusamy lost its joint family character. In support of the said contention, the learned counsel relied on the judgment of the Apex Court in Uttam Vs. Saubhag Singh and others reported in (2016) 4 SCC 68.

12. The learned counsel further submitted that recitals in the sale deed in favour of Ponnusamy clearly established that consideration for purchase of 'C' schedule property was paid by him and hence the trial Court was justified in coming to the conclusion that the suit 'C' schedule property was separate property of Ponnusamy. The learned counsel further submitted that the Will relied on by the defendants was referred to in the settlement deed executed by first defendant, mother in favour of plaintiff and the same was accepted by her. Therefore, the plaintiff is not entitled to challenge the validity of the Will after having received the benefit under the settlement deed executed by mother.

13. Based on the pleadings of the respective parties and the submission made by the counsel for either side, following points are arising for consideration in this appeal:

                   (i) Whether suit 'A' and 'B' schedule properties are ancestral properties and hence available for partition?

                   (ii) Whether 'C' schedule property is the self acquired property of Ponnusamy ?

                   (iii) Whether the Will relied on by the defendants was duly proved and valid in law?

                   (iv) Whether the plaintiff is entitled to relief of partition in the suit?

Discussion on point (i):

14. It is the specific case of the plaintiff that the suit 'A' and 'B' schedule properties are ancestral properties and hence, as a coparcener, she is entitled to a share. On the other hand, it is the case of the defendant that the suit 'A' and 'B' schedule properties lost its ancestral character by virtue of partition in the year 1980 and allotment of the same to Ponnusamy.

15. A perusal of the document marked before the Court would establish, there was a partition in the family of the parties on 01.02.1957 under Ex.B37. The partition was effected among plaintiff's paternal grandfather Sennimalai Gounder, his brother Ramasamy Gounder and minor Sennimalai Gounder. In the said partition deed, the suit 'A' and 'B' schedule properties were allotted to the share of Sennimalai Gounder along with other properties. Later, yet another partition had taken place in the family on 03.12.1980 under Ex.A2. The said partition was among plaintiff's father Ponnusamy, his brother Velusamy and their father Sennimalai Gounder. In the said partition, the properties described in ‘A’ schedule to partition deed was allotted to Sennimalai Gounder for life with vested reminder to Ponnusamy. The ‘B’ schedule to partition deed was absolutely allotted to the share of Ponnusamy. Thus, as per the terms of partition, after the death of life estate holder Sennimalai Gounder, Ponnusamy got the property. Since the suit 'A' and 'B' schedule properties are traceable to 1980 partition as well as 1957 partition, the plaintiff claims that those properties are ancestral properties and as an unmarried daughter on the date of coming into force of the Tamil Nadu Act 1 of 1990 as well as the Central Act 39 of 2005, the plaintiff is entitled to a share in the ancestral properties.

16. It was vehemently contended by the learned counsel for the respondent/defendant by relying on Uttam case cited supra that the partition of the property and allotment to the share of Ponnusamy destroyed the character of coparcener.

17. A close reading of judgment in Uttam case cited supra would indicate, if a male Hindu dies after commencement of Hindu Succession Act, having an interest at the time of his death in mitakshara coparcenery property leaving behind clause -1 heir his interest in the coparcenery will devolve as per the provision of Section 8 of Hindu Succession Act. In the case on hand, there was no intestate succession, Ponnusamy executed a Will and his interest in the coparcenery was bequeathed infavour of second defendant by virtue of the Will. Therefore, Section 8 of Hindu Succession Act, never came into operation. Further in Uttam case, senior most member of coparcenery died intestate in the year 1973 and devolution of property by Section 8 of Hindu Succession Act had taken place. Subsequently, the plaintiff in the suit was born in the year 1977. When the plaintiff in that suit was born in the year 1977, the properties were not enjoyed by the family members as joint tenants but by operation of Section 8 of Hindu Succession Act, they enjoyed it as tenants in common.

18. In the case on hand, even prior to death of Ponnusamy, the plaintiff was born and she acquired interest in the co-parcenery by virtue of her birth and introduction of the Tamil Nadu Act 1 of 1990. Therefore, on the death of senior most co-parcener, the right available to plaintiff (which had been acquired by her on birth) cannot be denied by relying on ratio laid down in Uttam case.

19. In Vineeta Sharma Vs. Rakesh Sharma reported in (2020) 9 SCC 1, while considering the ancestral character of coparcenery properties, the three members bench of this Court observed as follows:

                   “28. In case coparcenary property comes to the hands of a 'single person' temporarily, it would be treated as his property, but once a son is born, coparcenary would revive in terms of the Mitakshara law. In Sheela Devi v. Lal Chand, (2006) 8 SCC 581, it was observed:

                   “12. The principle of law applicable in this case is that so long a property remains in the hands of a single person, the same was to be treated as separate property, and thus such a person would be entitled to dispose of the coparcenary property as the same were his separate property, but, if a son is subsequently born to him or adopted by him, the alienation whether it is by way of sale, mortgage or gift, will nevertheless stand, for a son cannot object to alienations so made by his father before he was born or begotten (See C. Krishna Prasad v. CIT, (1975) 1 SCC 160). But once a son is born, it becomes a coparcenary property, and he would acquire an interest therein.”

                   29. In M. Yogendra & Ors. v. Leelamma N. & Ors., (2009) 15 SCC 184, similar opinion was expressed thus:

                   It is now well settled in view of several decisions of this Court that the property in the hands of a sole coparcener allotted to him in partition shall be his separate property for the same shall revive only when a son is born to him. It is one thing to say that the property remains a coparcenary property but it is another thing to say that it revives. The distinction between the two is absolutely clear and unambiguous. In the case of former any sale or alienation which has been done by the sole survivor coparcener shall be valid whereas in the case of a coparcener any alienation made by the karta would be valid.” (emphasis supplied)

                   30. In Smt. Sitabai & Anr. v. Ramchandra, AIR 1970 SC 343, it was held:

                   “3. x x x under the Hindu system of law a joint family may consist of a single male member and widows of deceased male members and that the property of a joint family did not cease to belong to a joint family merely because the family is represented by a single coparcener who possesses rights which an absolute owner of property may possess…..”

                   31. In Dharma Shamrao Agalawe v. Pandurang Miragu Agalwe & Ors., (1988) 2 SCC 126, it was held that joint family property retains its character even after its passing on to the hands of a sole surviving coparcener. If a son is subsequently born or adopted, the coparcenary will survive, subject to saving the alienations made in the interregnum.”

20. Therefore, it is clear, partition of property in the year 1980 and allotment of share to Ponnusamy will not destroy the ancestral character of the suit 'A' and 'B' schedule properties. The plaintiff was aged about 43 years, when the suit was filed in the year 2011. It means she should have born around 1968. Therefore, it is clear, even in the year 1980, when partition had taken place, the plaintiff was available and any allotment in favour of Ponnusamy was not only for himself, it was for the benefit of his children namely, plaintiff and second defendant. Of course, the plaintiff was not co parcener at that point of time, therefore, allotment made in the year 1980 should be treated as the one in favour of Ponnusamy and his son second defendant.

21. Later by virtue of the Tamil Nadu Act 1 of 1990, the plaintiff acquired birth right over the property. Even in cases were properties allotted to a co-parcener who is not having any children in a partition, the moment a son (now daughter also) born to him, the property will acquire the character of co-parcenery and the son will acquire birth right. In view of the same, this Court comes to the conclusion that suit 'A' and 'B' schedule properties are ancestral properties available for partition.

Point No.(ii):

22. The 'C' schedule property was purchased in the name of Ponnusamy under Ex.A1 on 02.05.1967, a perusal of recitals in Ex.A1 would indicate that consideration was paid by Ponnusamy in favour of Vendor. It is the case of the plaintiff that Ponnusamy's father, Sennimalai Gounder paid the sale consideration out of income from suit 'A' and 'B' schedule properties. However, absolutely there is no evidence to substantiate the same except the oral testimony of plaintiff. As mentioned earlier, the plaintiff was born around 1968, however, suit 'C' schedule property was purchased in the name of Ponnusamy in the year 1967. Therefore, she is not competent enough to depose about the source of income for purchase of the suit 'C' schedule property. It is settled law, whenever property is purchased in the name of junior member of the family, the general presumption is that it is his self acquired property. On the other hand, if the property is purchased in the name of Manager of the Hindu Joint Family, the presumption is that it is purchased out of joint family income and it is for him to rebut the presumption by leading evidence to the effect that he had independent source of his income. It is admitted case of the plaintiff that father of Ponnusamy, Sennimalai Gounder died only in the year 1986. Therefore, when 'C' schedule property was purchased in the name of Ponnusamy in the year 1967, he was only a junior member of the co-parcenery and he was not a senior member or Manager. In such circumstances, he is entitled to the benefit of general presumption that any property acquired in the name of junior member of Hindu joint family is his separate property. The Court below very well appreciated the evidence available on record and came to the conclusion that the suit 'C' schedule property was the self acquired property of Ponnusamy and the point No.(ii) is answered, accordingly in favour of respondent and against the appellant.

Point No.(iii):

23. According to the defendant, the father of the plaintiff Ponnusamy executed a Will under Ex.B6, dated 20.07.1995, bequeathing the suit 'C' schedule property in favour of his wife, first defendant and suit 'A' and 'B' schedule properties in favour of his son, second defendant. The Will was stoutly denied by the plaintiff by stating that within nine days from the date of execution of the Will, on 29.07.1995 Ponnusamy died and at the relevant point of time, he was suffering from cancer. It was also stated, absolutely there was no need for Ponnusmy to exclude the plaintiff who was his daughter.

24. In order to prove the Will, one of the attestor to the document was examined as DW.2, he clearly deposed about execution of the Will by Ponnusamy, nothing has been elicited in the cross examination of DW.2, so as to disbelieve his evidence in Chief examination.

25. The mother of the plaintiff namely, the first defendant executed a settlement deed under Ex.B10 on 28.05.2004 settling a portion of the suit property in favour of plaintiff. In the said settlement, there is a clear recital that first defendant got the property under the Will executed by Ponnusamy. The plaintiff is a settlee under the said document in the year 2004 and the present suit has been filed by the plaintiff nearly after seven years. Even though, the plaintiff denied knowledge about the settlement during her cross examination before this Court, she admitted that the place she is residing is the property covered by the settlement deed. When there is a reference about the Will executed by Ponnusamy in the settlement deed in favour of plaintiff, she is not entitled to challenge the Will after seven years. It is seen from the evidence available on record that testator died only after nine days from the date of execution of Will. The execution was proved by examining the attestor. The Will has been referred to in the registered settlement deed executed by first defendant in favour of plaintiff, all these factors go against the plea of the plaintiff that Will was not a genuine one. It was vehemently contended by the learned counsel for the appellant that absolutely there was no chance for the testator to exclude the plaintiff. Merely because one of the natural heir is excluded in the Will, we cannot jump to a conclusion that the Will is not a genuine one because very purpose of execution of the Will is to make a deviation from natural succession by way of operation of law. Either some of the natural heirs have to be disinherited or the share likely to be inherited by them on death of testator shall be increased or decreased. Hence mere exclusion of natural heir is not a ground to doubt the Will, unless the bequeath is so unnatural. In this regard, useful reference may be had to Ved Mitra Verma Vs. Dharam Deo Varma reported in 2014 (15) SCC 578 and Mahesh Kumar (dead) by Lrs Vs. Vinod Kumar and others reported in (2012) 4 SCC 387.

26. The trial Court taking into consideration all these factors rightly came to the conclusion that the Will relied on by the defendant stood proved. I do not find anything to reject the said findings of the trial Court.

27. In view of the discussions made earlier, the Will relied on by the defendants is upheld. Point No.(iii) is answered against the plaintiff and in favour of the defendants.

Discussion on Point No.(iv):

28. In view of the conclusion reached in point No.(ii) that the suit 'C' schedule property is the self acquired property of Ponnusamy and the conclusion reached by this Court in point No.(iii) upholding the validity of the Will, the suit 'C' schedule property was not available for partition immediately after the death of Ponnusamy. However during pendency of suit, the legatee under Will, namely 1st defendant died intestate leaving behind the plaintiff and 2nd defendant as her class one heirs. The said fact is admitted by both counsel for plaintiff and 2nd defendant. Hence, plaintiff is entitled to 1/2 share in suit ‘C’ schedule property.

29. This Court already concluded in Point No.(i) that suit 'A' and 'B' schedule properties are ancestral properties. Therefore, Ponnusamy is entitled to execute Will only in respect of his interest in the joint family property. Therefore, the Will is valid to the extent of 1/3rd share of Ponnusamy, as far as remaining 2/3rd is concerned, plaintiff and second defendant are entitled to 1/3rd each. The 1/3rd share of Ponnusamy in suit 'A' and 'B' schedule properties will go to second defendant as per Will executed by him. Hence, the plaintiff is entitled to 1/3rd share and the second defendant is entitled to 2/3rd share in the suit 'A' and 'B' schedule properties. It was contended by the learned counsel appearing for the respondent that when Ponnusamy died, his another daughter Vijayalakshmi was alive and she died subsequently, therefore, plaintiff is entitled to 1/4th share and 1/4th share of Vijayalakshmi will go to mother of plaintiff after death of Vijayalakshmi. There is no evidence available on record to show that the Vijayalakshmi died subsequent to death of Ponnusamy. Therefore, I hold that the plaintiff is entitled to 1/3rd share in the suit 'A' and 'B' schedule properties. Hence, point No.(iv) is answered by holding that plaintiff is entitled to ½ share in suit ‘C’ schedule and 1/3rd share in suit ‘A’ and ‘B’ schedule properties.

30. In view of the conclusions reached by this Court in Point Nos.(i) to (iv), the first appeal stands allowed and the judgment and decree passed by the trial Court is set aside. It is declared that the appellant/plaintiff is entitled to 1/3rd share in suit 'A' and 'B' schedule properties and ½ share in suit ‘C’ schedule property. In the facts and circumstances of the case, there will be no order as to costs.