JUDGMENT :

G.K. ILANTHIRAIYAN, J.

Prayer: Appeal Suit filed under Section 96 of C.P.C. to set aside the Judgment and Decree dated 19.01.2006, passed in O.S. No. 71 of 1998 on the file of the learned Additional District Judge, Pondicherry at Karaikal and allow the counter claim in O.S. No. 71 of 1998 on the file of the learned Additional District Judge, Pondicherry at Karaikal.

1. The Appeal Suit is filed as against the Judgment and Decree dated 19.01.2006 made in O.S. No. 71 of 1998 by the learned Additional District Judge, Pondicherry, Karaikal.

2. For the sake of convenience, the parties are referred to as per their ranking in the trial Court.

3. The suit is for partition. The case of the plaintiff is that she is the sister and the defendants are her brothers and they born to one Ramanathan. After demise of their parents, the plaintiff is entitled to have equal share in the property left out by their parents viz. 1/4th share of the entire estate. Even prior to the death of their mother in the year 1992, the first defendant caused notice to the plaintiff and other defendants demanding partition of 1/4th share and followed by a suit in O.S. No. 29 of 1992, seeking partition and separate possession of his ¼ share in the property left out by their parents. According to the first defendant, the properties possessed by their father are joint family and ancestral properties. Whereas the plaintiff stated that the properties possessed by her father are self acquired properties. As per Hindu law prevailing in Pondicherry, the joint family system is not recognized and there is no distinction between the ancestral properties and self acquired properties. Therefore, the sons did not get right in the properties by birth. The properties owned by her father are to be treated as self acquired properties. Further the suit filed by the first defendant was dismissed for default. Therefore, the plaintiff filed suit for partition and prayed for 1/4th share.

4. Resisting same, the first defendant filed written statement and stated that the first schedule properties are ancestral properties of their father Ramananthan and the second schedule properties are belonged to their mother. On the death of their father, he left their mother and the parties of this suit as his legal representatives. The first defendant caused notice called upon for partition on 23.11.1998. The second defendant set up a Will as if their father bequeathed the first item of the properties in his favour. Their father could not have executed the same, since he was very ill and he was not in a good state of mind at the time of execution of Will. That apart, their father was not competent to bequeath the entire properties in favour of the second defendant through the Will. Their mother was getting pension of Rs. 4,000/- and after demise of their father she lived in the schedule I of the property and she was received rent from the tenants. Thereafter, the first defendant stayed with his mother at Karaikal in the portion of the suit properties.

4.1. Insofar as the other properties are concerned the defendants 2 to 3 were leased out the some of the properties and they received rents. While being so, their mother executed Will dated 07.06.1991 and bequeathed the share due to her from the entire estate of her husband and her personal property referred in schedule II, in favour of the first defendant. It was come into force on 03.04.1992. Thus the first defendant alone is entitled to have entire property prescribed in the second schedule of the suit. Therefore, the plaintiff is entitled to have 1/5th share in the estate of her father. The first defendant is also entitled to have 1/5th share in the first schedule of the property which was owned by their father. In addition to 1/5th share that should be alloted to their mother, totally the first defendant is entitled to have 2/5th share in th