(Prayer: Appeal Suit filed under Section 96 r/w Order XLI of CPC, 1908, to set aside the judgment and decree dated 13.10.2022 by the learned Principal District Judge, Perambalur in O.S.No.9 of 2016 and set aside the portion, touching the dismissal of the suit concerning the properties Item 3 to 8 in the schedule mentioned properties and include the same for partition.

Appeal Suit filed under Section 96 r/w Order XLI of CPC, 1908, to set aside the judgment and decree dated 13.10.2022 in O.S.No.09 of 2016 passed by the learned Principal District Judge, Perambalur.)

Common Judgment:

1. A.S.No.196 of 2023 has been filed, challenging the judgment and decree in O.S.No.9 of 2016, in so far as dismissal of the suit, concerning items 3 to 8 of the schedule mentioned properties are concerned. The plaintiff is the appellant in this appeal.

2. Insofar as A.S.No.419 of 2023, the said appeal has been filed, challenging the judgment and decree in O.S.No.9 of 2016, that is the very same suit. This appeal is at the instance of the defendants 2 and 3. Considering that both the appeals arise out of one and the same suit, judgment and decree, both the appeals have been heard together.

3. I have heard Mr.A.E.Chelliah, learned Senior Counsel for Mrs.Vasantha Kumari Chelliah and Mr.R.Prathaban, learned counsel for the appellant/plaintiff in A.S.No.196 of 2023 and the 1st respondent in A.S.No.419 of 2023 and Mr.M.Sridhar, learned counsel for Mr.A.M.Venkatakrishnan, learned counsel for the appellants in A.S.No.419 of 2023 and the respondents 1 and 2 in A.S.No.196 of 2023 and Mr.V.J.Arulraj, learned counsel for the respondents 3 to 6 in A.S.No.196 of 2023 and the respondents 2 to 6 in A.S.No.419 of 2023.

4. For the sake of convenience, the parties shall be referred as per the rank before the trial Court.

5. The plaintiff filed the suit for partition and separate possession of the properties set out in the schedule to the plaint, numbering 10 items. The trial Court decreed the suit in part, declaring the plaintiff's 1/4th share in the items 1 and 2 and dismissing the suit in respect of the other items. The plaintiff, aggrieved by the dismissal of the suit in respect of items other than 1 and 2, has filed A.S.No.196 of 2023 and the defendants 2 and 3, challenging the decree for partition in favour of the plaintiff, in respect of even items 1 and 2, have filed A.S.No.419 of 2023.

6. Pleadings:

(a) The plaint in brief:

The suit items are situate at Elambalur village. The suit properties are joint family ancestral properties of the plaintiff and the defendants 1 to 8. The suit item 2 was purchased by the father of the plaintiff, Nallu @ Periyasamy on 29.10.1957 and the suit 1st item was purchased by the mother of the plaintiff, Chinnapillai on 09.04.1952. The plaintiff's father was blessed with four children, namely Makkali @ Mathathali @ Mekkali, Chellamuthu, Mariyayee and the plaintiff, Chinnaiyan. Makkali's wife is the 1st defendant and their children are defendants 2 and 3. The 4th defendant is the wife of Chellamuthu. The defendants 5 and 6 are daughters and the 7th defendant is the son of Chellamuthu.

                   (b) The plaintiff's father, Nallu @ Periyasamy died intestate and since the properties are joint family ancestral properties, without partition, the plaintiff is entitled to share in the said property. From and out of the income of suit items 1 and 2, the 3rd item of the suit property was purchased in the name of Makkali. The said property has been blended along with items 1 and 2 of the suit properties and enjoyed and treated only as joint family properties. The plaintiff's mother and brothers mortgaged some of the items of the properties with Co-operative Agricultural Bank and obtained loan on 20.05.1968 by executing a mortgage deed. Subsequently, the plaintiff's mother died in the year 1970 and the suit properties have ever since been in joint possession and enjoyment of the plaintiff and his brothers and sister. The 4th item of suit property was purchased from and out of the income from items 1 to 3, however in the name of the 1st defendant. The 4th item of the property is also joint family and ancestral property, without any partition.

                   (c) Further, from and out of the income from the joint family properties, items 5 to 9 were also purchased in the name of the 1st defendant. The plaintiff therefore demanded his share in the suit properties. However, the defendants evaded the request of the plaintiff, necessitating the plaintiff to file a suit for partition.

7. The written statement filed by the 3 rd defendant and adopted by the 2 nd defendant in brief:

The claims of the plaintiff that the 1st item of property is the ancestral property of the parties and that the 2nd item of the property is also a joint family and ancestral property is totally denied. The further claims that out of the incomes accruing from the suit properties, the other items of properties were purchased is also totally denied. The brother of the plaintiff, Makkali purchased item 3 of the suit property, out of his own income and funds and it was his self acquired property. The mortgage deed relied on by the plaintiff is a fabricated document. Items 5 to 9 were also purchased in the name of the 1st defendant, out of his own income and the plaintiff has no share in any of the suit properties. The claim of the plaintiff that the properties have been blended with the ancestral properties is also denied. The 3rd defendant's mother, Rajammal had purchased various lands in the same Elambalur village and they are her self acquired properties and the said properties are not in any way connected to the suit properties. The plaintiff, Chinnayan is a doctor, who worked in several Government hospitals and retired in the year 2009 and only with a malafide intention to knock off the valuable properties of his brother, Makkali, false allegations have been made and the suit has been filed, as if the properties are ancestral properties in which the plaintiff has a share.

8. The written statement filed by the 8^th defendant:

The 8th defendant supported the case of the plaintiff and contended that the properties are joint family and ancestral properties and therefore, liable to be partitioned.

9. Additional written statement filed by 3 rd defendant and adopted by the 2^nd defendant:

Post amendment of the plaint, an additional written statement has been filed, contending that all properties of the father and mother of the defendants 2 and 3 were their respective self acquired properties and the plaintiff has no iota of right over any of the suit properties.

10. Issues framed by the trial Court:

Based on the pleadings, the trial Court has framed the following issues:

                   1.Whether the plaintiff is entitled for the preliminary decree for partition as prayed for?

                   2.Whether the plaintiff is entitled for 5/16 share in suit property item 2 to 9 as prayed for?

                   3.Whether the plaintiff is entitled for ¼ share in suit property item No.1 as prayed for?

                   4.Whether the suit properties are ancestral joint family properties?

                   5.Whether the suit arose no cause of action?

                   6.Whether the description and nature of suit properties are not correct?

                   7.To what other relief the plaintiff is entitled?

11. Trial:

On the side of the plaintiff, three witnesses, namely P.W.1 to P.W.3 were examined and Ex.A1 to Ex.A31 were marked and on the side of the defendants, D.W.1 and D.W.2 were examined and Ex.B1 to B40 were marked.

12. Decision of the trial Court:

The trial Court finding that the plaintiff had given up the claim with regard to 9th item of suit property, recorded the same, on the basis of a memo filed by the counsel for the plaintiff that it can be taken by the defendants 2 and 3, son of Makkali and Rajammal. Insofar as the other properties, after considering the oral and documentary evidence, the trial Court found that only items 1 and 2 of the suit schedule properties were available for partition and granted a preliminary decree of 1/4th share in these two items in favor of the plaintiff. Insofar as the other properties, the trial Court found that there is no cause of action for filing a suit for partition as the properties were not joint family and ancestral properties as claimed by the plaintiff and dismissed the suit.

13. Arguments of the learned learned Senior Counsel appearing for the appellant in A.S.No.196 of 2023 and the 1 st respondent in A.S.No.419 of 2023:

                   (a) Mr.A.E.Chelliah, learned Senior Counsel would submit that the parents of Nallu @ Periasamy and Chinnapillai died, leaving behind three sons and a daughter, namely Makkali, Chellamuthu, Chinnaiyan and Mariyayee. He would submit that excepting item 9, which is the house property, all other items are lands and the trial Court, without even considering the nature and character of the properties and also proceeding to describe the properties incorrectly, has arrived at a wrong conclusion that the items 3 to 9 are self acquired properties and not open for partition. The learned Senior Counsel, taking me through Ex.B3 to Ex.B5, Ex.B7 and Ex.B8 and sale deeds in Ex.A4, Ex.A6, Ex.A7 and Ex.A8, would contend that there is a clear indication that the properties were purchased only out of the income accruing from items 1 and 2 and merely because the properties were purchased in the name of the elder son, Makkali, it would not render these properties as the self acquired properties of the 1st defendant and consequently, not be open for partition.

                   (b) Mr.A.E.Chelliah, learned Senior Counsel would further submit that the trial Court has not even noticed the relevant dates and admitted facts that the sister and her husband alone were cultivating the lands and were in fact, providing income to the brother, Makkali, as he was not well educated. He would therefore submit that there was no independent income available at the hands of the elder brother, Makkali, who had acquired the various items of properties in his name. It is therefore the contention of the learned Senior Counsel that when the plaintiff had established that sufficient joint family income was available, the trial Court should have presumed that the properties that were purchased in favour of the brother, Makkali were only out of the joint family nucleus and could not be claimed as the self acquired properties of the elder son, Makkali. The learned Senior Counsel would further submit that the plaintiff, being a doctor has been away from the village and taking advantage of his absence, the brother Makkali and his family have attempted to deprive him of his legitimate rights in the suit properties.

                   (c) Mr.A.E.Chelliah, learned Senior Counsel would also submit that the other sister and brothers of the plaintiff are also supporting the plaintiff's cause, which also only strengthens the case of the plaintiff that the properties were always treated as joint family properties and therefore, dehors the purchase having been made in the name of the son, Makkali or the mother of the 3rd defendant Rajammal, the properties would still constitute ancestral and joint family properties, entitling the plaintiff to seek for partition. Mr.A.E.Chellaiah, learned Senior Counsel would further state that the said Rajammal, wife of Makkali could not have executed a Will, bequeathing the properties belonging to the joint family and no rights would flow under the said Will in favour of the legatees mentioned therein. The learned Senior Counsel would therefore pray for the appeal in A.S.No.196 of 2023 being allowed and A.S.No.419 of 2023 being dismissed.

14. Arguments of the counsel for the respondents 3 to 6 in A.S.No.196 of 2023 and the respondents 2 to 6 in A.S.No.419 of 2023:

                   (a) Mr.V.J.Arulraj, learned counsel would contend that item 3 of the suit property was purchased in the name of the wife of Makkali and that she had no indepdent source of income to purchase the property. When she died pending the litigation, that is after the suit came to be filed in April 2016, the Will executed by her on 06.05.2016 would have no effect and is hit by doctrine of lis pendens. He would further state that taking advantage of the mother residing with the 1st respondent in A.S.No.196 of 2023 and the appellant in A.S.No.419 of 2023, the Will has been brought about under suspicious circumstances.

                   (b) Mr.V.J.Arulraj, learned counsel would also state that the appellant/1st respondent, Baby, daughter of Makkali is a very powerful person and has exercised undue influence and coercion in having the Will executed in her favour, exclusively to the detriment of the brother, namely the 2nd respondent in A.S.No.196 of 2023. He would further state that the 3rd defendant having adopted the written statement by the 2nd defendant, cannot now turn around and claim that all the items of suit properties are to come to her alone. He would therefore pray for the preliminary decree being modified to declare the share of the 3rd defendant as well.

15. Arguments of the learned counsel for the appellants in A.S.No.419 of 2023 and the 2 nd respondent in A.S.No.196 of 2023:

                   (a) Mr.M.Sridhar, learned counsel appearing for the 2nd defendant would submit that when the defendants had categorically denied the very character of the suit properties, which admittedly stood in independent names of the father of the defendants 2 and 3, Makkali and the mother, the 1st defendant Rajammal. The burden was very heavily on the plaintiff to establish that these items of properties were purchased out of the joint family nucleus. Mr.M.Sridhar would contend that the plaintiff has miserably failed to adduce any acceptable evidence and the trial Court has rightly rejected the claim for partition in respect of items 3 to 9. He would further submit that items 1 and 2 were admittedly purchased in the names of the father and mother of the plaintiff through registered sale deeds marked as Exs.A2 and A3 dated 09.04.1952 and 20.09.1957 respectively. He would further submit that though item 1 was mortgaged by the plaintiff's father, it was subsequently sold to Muthu Ammal and Valli Ammal on 08.03.1956 for unpaid debts. The said document has been marked as Ex.B27.

                   (b) Mr.M.Sridhar, learned counsel would further submit that the 1st defendant has purchased the very same property from Muthu Ammal and Valli Ammal under Ex.B30 dated on 19.04.2020 and subsequently the 1st defendant has also mutated the revenue records in her name. Therefore, it is absolutely incorrect to contend that the 1st item of the suit property is available for partition and the trial Court has erroneously proceeded to grant a decree, as if the plaintiff is entitled to a 1/4th share. With regard to item 2, Mr.M.Sridhar, learned counsel would contend that items 2 and 3 were sold by the plaintiff's father to Ponnusamy and Muthu. It was subsequently conveyed in favour of one, Nataraja Reddy under registered sale deed dated 23.06.1965 and the said property was purchased by the 2nd defendant's father, Makkali, under registered sale deed dated 21.03.1968, which was also exhibited even on the side of the plaintiff as Ex.A4.

                   (c) It is therefore, the condition of Mr.M.Sridhar, learned counsel that when both items 1 and 2 were alienated even during the lifetime of the father of the plaintiff, the plaintiff had no cause of action for seeking partition in respect of these items of properties. He would also state that the defendants have exhibited the revenue records, especially Pattas, vide Ex.B19 and Ex.B33 in respect of items 1 and 2, which clearly demonstrate that it is only the defendants, who have exercised absolute right over the subject properties, without any manner of interference from any person, especially the other legal heirs of Nallu and Chinnapillai.

                   (d) Insofar as items 3 to 9, it is the contention of Mr.M.Sridhar, learned counsel that they are also not joint family properties and the plaintiff did not stake a claim for close to 50 years and has also not been able to adduce any documentary evidence, in support of joint family ownership or joint family nucleus and in such circumstances, the burden being heavily resting on the plaintiff, the plaintiff has failed to discharge the same. Insofar as the argument revolving around the Will of the mother, Rajammal, Mr.M.Sridhar, learned counsel submits that the Will of the mother of the defendants 2 and 3, Rajammal cannot be a point of discussion in the present appeals and if at all the 3rd defendant has any objection regarding the truth and genuineness of the Will, it is for the 3rd defendant to workout his rights independently in accordance with law and he cannot seek an adjudication here, based on the Will executed by the mother.

                   (e) Mr.M.Sridhar, learned counsel would also submit that CMP.No.13267 of 2024 was dismissed by this Court, by order dated 03.06.2025, on the ground that the Will was not even produced or marked as evidence before the trial Court and therefore, it was not relevant to entertain the application filed by the 3rd defendant. He would therefore pray being dismissed and A.S.No.419 of 2023 being allowed. He would also rely on the decisions of the Hon'ble Supreme Court in Shashidhar and others Vs. Ashwini Uma Mathad and another in Civil Appeal Nos.3780-3781 of 2020 dated 08.07.2024 and Angadi Chandranna Vs. Shankar and others in Civil Appeal No.5401 of 2025 dated 22.04.2025.

16. I have carefully considered the submissions of Mr.A.E.Chelliah, learned Senior Counsel, Mr.V.J.Arulraj, learned counsel and Mr.M.Sridhar, learned counsel for the respective parties.

17. Points for consideration:

On consideration of the arguments advanced by the learned Senior Counsel and the learned counsel for the parties, the following points for consideration arise in these appeals:

                   1.Whether the suit items 1 and 2 are joint family ancestral properties at the hands of the children of Nallu and Chinnapillai?

                   2.Whether suit items 3 to 9 are separate properties of Makkali, father of defendants 2 and 3 or whether they are also joint family ancestral joint family properties, in which the plaintiff is entitled to a share?

18. Points 1 and 2:

It is not in dispute that the suit properties are all situate at Elambalur village. The plaintiff claims that the 2nd item of the property was purchased by the father, Nallu @ Periasamy, in and by a registered sale deed dated 20.09.1957 and the 1st item was purchased by the mother, Chinnapillai on 09.04.1952. Admittedly, the said Nallu and Chinnapillai were blessed with four children, namely Makkali, Chellamuthu, Mariyayee daughter and Chinnayan, who is the plaintiff.

19. The case of the plaintiff is that the properties, which were acquired by the father and mother are ancestral in nature and consequently, the plaintiff, being a son, is entitled to a 1/4th share. The trial Court has also accepted the claim of the plaintiff and granted a decree for 1/4th share in respect of items 1 and 2. The objection to the said preliminary decree in respect of items 1 and 2 of the suit properties is that firstly, the properties were not ancestral properties at the hands of the parents Nallu and Chinnammal, but they were only self-acquired properties, belonging to the father and mother respectively.

20. Further, even assuming the property was treated as a joint family property and all family members joined together in executing a mortgage deed, it would not retain the character of joint family or ancestral property. According to the 2nd defendant, Baby, even during the lifetime of the parents, both the items of properties were sold to strangers to the family. Firstly, I find that though the plaintiff claims that the items 1 and 2 of the suit properties have been purchased from and out of joint family nucleus and consequently, they are ancestral properties in character, the plaintiff has not filed any documents to establish that the property purchased in the name of the father and mother were only out of the joint family funds, that were available in surplus to acquire these properties. Subsequent to the mortgage, the property was sold, in and by Ex.B27 on 08.03.1956 to Muthu Ammal and Valli Ammal. The plaintiff has not questioned the said sale deed at any point of time. In fact, none of the heirs have chosen to question the said sale deed in Ex.B27.

21. Long after, in fact, close to four decades later, the 1st defendant, Rajammal, wife of Makkali, one of the sons of Nallu and Chinnapillai has purchased the said property under Ex.B30 and revenue records have also been mutated in the name of the 1st defendant. Therefore, as rightly contended by Mr.M.Sridhar, learned counsel, the minute the property was sold in 1956, the issue of joint family status or character is lost and merely because the property has been repurchased, much later, by the wife of one of the heirs, would not entitle the other legal heirs to claim that the property is a joint family property and available for partition.

22. Similarly, even in respect of item 2, the brother of the plaintiff, namely, the father of defendants 2 and 3, Makkali, in and by Ex.A4, has purchased the said property in 1968 from Nataraja Reddy, who had purchased it from the first purchasers from the plaintiff's father, namely Ponnusamy and Muthu, even in the year 1965. The sale deed in favour of Makkali dated 21.03.1968 has also been marked as Ex.A4. Therefore, when items 1 and 2 were alienated during the lifetime of the parents, namely Nallu and Chinnapillai, the plaintiff has no locus to file a suit for partition in respect of these two items of properties. The defendants 1 to 3 have also filed sufficient documentary evidence to establish that items 1 and 2 have been purchased, after the property went out of the family and all revenue records have also been mutated in their favour, which all clearly go to show that the character of joint family was lost even in 1956 in respect of item 2 and 1965 in respect of item 1. The alienation in favour of third parties has never been challenged by any of the legal heirs and therefore, merely because the defendants 1 to 3 have acquired the properties subsequently, it will not clothe the properties with character of joint family or revive the status of joint family to enable the other legal heirs of Nallu and Chinnapillai to seek for partition.

23. The Honorable Supreme Court in Angadi Chandranna's case, cited supra, held that there is no presumption that the property is joint family property, merely due to existence of a joint Hindu family and the claimant must prove that it is joint family property, typically by showing a joint family nucleus used for its acquisition and that the doctrine of blending requires clear intention by the owner to relinquish self-applied property into the joint family pool and mere use by family members or acts of generosity would not suffice. Even applying the ratio laid down by the Honourable Supreme Court, as already indicated, once the properties go out of the family, merely because one of the legal heirs acquires the property, it would not revert the status of joint family, especially when the alienations in favour of the strangers / third parties have become final and never challenged by any of the legal heirs, on the ground that the properties are joint family properties, where they also had a share. In view of the above, point 1 is answered in favour of the appellants in A.S.No.419 of 2023 and against the appellant in A.S.No.196 of 2023.

24. Coming to items 3 to 9, admittedly, these properties are standing in the name of the 1st defendant, wife of Makkali, who is the daughter-in law of Nallu and Chinnapillai. The burden was very heavily on the plaintiff to establish that the said items of property were purchased only out of funds accruing from suit items 1 and 2. Firstly, it has already been held, while answering point 1 above that the plaintiff has not been able to establish that even items 1 and 2 were joint family ancestral properties, entitling the plaintiff to claim a share in the same. Further, properties have been sold even during the lifetime of the parents. In such circumstances, the burden is heavier to establish that there was surplus income available, which was utilized for purchase of items 3 and 9 in the name of the 1st defendant, who was, in fact, only a daughter-in-law of the family.

25. Excepting for filing some of the sale deeds to claim existence of income, which was available for purchase of items 3 to 9, the plaintiff has not been able to establish any nexus between available source of funds and the purchase of properties in the name of the 1st defendant. Admittedly, the elder son, Makkali was employed in the Agricultural Department and he had independent income of his own. In fact, Ex.A4 and Ex.B27 clearly established that he was in a position to even repurchase the property of his father and mother even in 1968 and 2000. The said Makkali was also entitled to pension and in such circumstances, there is nothing to doubt the capacity of the husband of the 1st defendant and father of the defendants 2 and 3, who has purchased the suit items 3 to 9 in the name of his wife, the 1st defendant.

26. Mere plea that the plaintiff is a member of joint family and suit properties were purchased from and out of joint family surplus income would not suffice, especially when the documents are standing in the name of the daughter-in-law of the family. The plaintiff has not been able to discharge the heavy burden, which vested on the plaintiff. It is also contended by Mr.M.Sridhar, learned counsel for the 2nd defendant that the plaintiff also has lost his right to claim partition, by long passage of time, having not challenged the sale deeds in the name of the 1st defendant and there is a case of ouster of the right of the plaintiff as well and consequently, the suit itself being barred by limitation.

27. Reliance has also been placed on Section 110 of the Bharatiya Sakshya Adhiniyam (BSA), 2023, which places the burden of proof as to ownership on the plaintiff to show that the defendants 1 to 3 are not the owners of the suit properties. As already discussed, the plaintiff has not been able to bring on record any material or satisfactory evidence to establish the existence of joint family funds or even joint ownership. The trial Court has rightly assessed the oral and documentary evidence and come to the conclusion that the items 3 to 9 are self acquired properties of the 1st defendant and the plaintiff has no right to claim partition. Point 2 is answered accordingly.

28. Coming to the claim of the 3rd defendant, brother of the 2nd defendant and son of the 1st defendant regarding the challenge to the Will executed by the mother, I am unable to countenance the submissions of the learned counsel for the 3rd defendant that the Will is hit by doctrine of lis pendens. Having already found that the properties are self acquired properties of the 1st defendant, mere pendency of a suit for partition by a person, who had no claim over these items would not prevent the 1st defendant from executing a Will. With regard to truth and genuineness of the said Will, it is the matter which has to be agitated independently by the 3rd defendant, who has been deprived of any benefit under the said Will. The said question cannot be gone into in the present appeal proceedings.

29. Result:

In fine, A.S.No.419 of 2023 is allowed and the judgment and decree dated 13.10.2022 in O.S.No.09 of 2016 passed by the learned Principal District Judge, Perambalur, is set aside. A.S.No.196 of 2023 is dismissed. However, considering the relationship between the parties, no order as to costs. Connected Civil Miscellaneous Petitions are closed.