JUDGMENT :

R. Tharani, J.

1. Heard the learned counsel on both the sides.

2. This appeal is filed against the Judgment and Decree passed in O.S. No. 32 of 2011 dated 12.07.2013 on the file of the learned Principal District Judge, Theni.

3. The appellant herein is the defendant and the respondent herein is the plaintiff in the suit. The respondent filed a suit in O.S. No. 32 of 2011 seeking a prayer of partition and for separate possession and for permanent injunction not to alienate the property. The learned Principal District Judge decreed the suit. Against which, the appellant has come forward with this appeal.

4. The case of the plaintiff is that the plaintiff is the son of the defendant and the suit properties belongs to the grandfather of the plaintiff by name Muthu Thevar. After the death of Muthu Thevar, the plaintiff and the defendant were enjoying the property as joint family property and out of the income from the property 1 to 4, the suit property item No. 5 was purchased in the name of the defendant and that all the properties were enjoyed by the defendant and the plaintiff as joint family properties. When the plaintiff seek for a partition in the year 2011, the defendant tried to alienate the property and to create encumbrance over the property. The plaintiff issued a notice dated 12.10.2011 and the same was received by the defendant on 20.10.2011. The suit properties are to be divided into two portions and one such portion is to be allotted to the plaintiff.

5. The case of the defendant is that the there is no Hindu Undivided family. The plaintiff and the defendant were filing their income tax returns separately. The plaintiff cannot claim any such right as a member of a Hindu undivided family. The plaintiff is not a legal heir under Section 8 of Hindu Succession Act 1956, when the defendant is alive. After the death of the father of the defendant in the year 1999, the defendant took possession of the properties. The defendant and his sister are the legal heirs. With the consent of his sister, the defendant transferred the revenue records in his name. The defendant was 20 years old at the time of death of his grandfather.

6. The property in Survey No. 199/1 was purchased by the defendant on 22.05.1980 out of his own income and the same was reported as self - acquired property in the official statement of the defendant. Even before the death of his father, the defendant was filing separate income tax returns and the copy of the IT return filed by the defendant for the assessment year 1992-1993 is enclosed in the suit as a document. It is mentioned that the property in Survey No. 199/1 was purchased from Hindu Undivided Family income. The grandson is not having any right in the property of the grandfather when the father is alive.

7. The plaintiff in his reply statement has stated that the plaintiff's grandfather died in the year 1999. The suit properties are the ancestral properties of Muthu Thevar. The plaintiff is having right to obtain the property. Out of income of the joint family property, the defendant purchased the 5th item of the suit property. The plaintiff and the defendant used to share the income obtained from the cultivation of lands.

8. On the basis of the pleadings, the trial Court framed the following issues:

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9. One witness was examined and 10 documents were marked as Exs. A1 to A10 on the side of the plaintiff and one witness was examined and 10 documents were marked as Exs. B1 to B10 on the side of the defendant. After considering the oral and documentary evidence, the trial Court decreed the suit. Against which, the appellant herein has filed the present appeal suit before this Court.

10. In the grounds of appeal, it is stated that the lower Court ought to have considered Section 8 of the Hindu Succession (Amendment) Act 2005 and dismissed the claim of plaintiff. As per Section 8, the property of appellant's father who died interstate shall devolve only on the appellant. The plaintiff who is