The court clarified the application of Hindu Succession Act provisions to determine the entitlement to ancestral properties.

JUDGMENT

(Prayer: Appeal Suit has been filed under Section 96 of Code of Civil Procedure, 1908, praying against the judgment and decree dated 21.07.2010 made in O.S.No.114 of 2006 on the file of the Additional District Judge/Fast Track Court No.1, Coimbatore and pass such other further orders as may be deem fit and property depending upon the facts and circumstances of the case.)

1. This appeal by the defendants in a suit for partition being aggrieved by the decree of the Trial Court declaring the plaintiff is entitled to 5/8 share in respect of suit item Nos.1 & 3 and portion of the 2nd item which stands in the name of K.R.Ramasamy Naicker.

2. The plaint averments are as below:-

The plaintiff is son of K.R.Ramasamy Naicker, who died on 13.01.1989 leaving behind his wife K.R.Nagarathinam (1st defendant) and daughters K.R.Santha (2nd defendant) and K.R.Saratha (3rd defendant) and his son Srinivasan the plaintiff herein. The schedule mentioned properties in item Nos.1 & 3 are the ancestral property of K.R.Ramasamy Naiker and item No.2 was purchased from out of the surplus income derived from the ancestral property. The properties were held as joint family property with K.R.Ramasamy Naicker as the “Karta”. After the demise of K.R.Ramasamy Naicker for the sake of convenience, item No.1 of the suit property is in possession, enjoyment and occupation of his son (the plaintiff) and item No.2 of the suit property is in possession, occupationand enjoyment of his wife/1st defendant. Due to difference of opinion with the plaintiff, the 1st defendant filed suit for partition in respect of present suit property and obtained interim injunction in O.S.No.594 of 1994 on the file of Principal Sub Court, Coimbatore and thereafter, dislodged the plaintiff from the possession of the 1st item of the suit property. The present suit is filed seeking 5/8 share in the property by the plaintiff being the sole male descendant of K.R.Ramasamy Naicker and the share devolves upon him as per survivorship.

3. The suit has been contested by the defendants 1 & 2 by filing written statement wherein they have contended that the suit properties are not ancestral property of K.R.Ramasamy Naicker as alleged by the plaintiff. Item Nos.1 & 3 of the suit properties are the separate property of K.R.Ramasamy Naicker, which he got through a registered partition deed dated 21.04.1982. These two properties were allotted to K.R.Ramasamy Naicker under the said partition deed morefully described under ‘B’ schedule. The property allotted to him were enjoyed exclusively by K.R.Ramasamy Naicker. The description of Survey number in the plaint in respect of 3rd item property is wrong. The actual property allotted to K.R.Ramasamy Naicker under partition deed and in exclusively enjoyment of K.R.Ramasamy Naicker was in Survey No.492/2, Kuniamathur Village, Coimbatore and not in Survey No.432 as mentioned in the plaint.

4. The 2nd item property purchased by the 1st defendant under a registered deed dated 10.02.1988 and it is a self acquired property of the 1st defendant. The 1st defendant has constructed a house from her fund in the said property. It is incorrect to claim that the 2nd item property was purchased by K.R.Ramasamy Naicker from out of income derived from the ancestral property. In fact, the 1st defendant purchased 570sq.ft of land with east facing, along with a building in 420 sq.ft in S.F.No.419/1 Kuniamathur Village, Coimbatore. The said K.R.Ramasamy Naicker purchased land measuring 617 ½ sq.ft in the said survey number with building constructed in 550 sq.ft on the same day from the same vendor. While so, the plaintiff has described the 2nd item property measuring 2.73 cents of land with 970 sq.ft building as if they entirely owned by K.R.Ramasamy Naicker.

5. Since K.R.Ramasamy Naicker died interstate, as far as the property left by him has to be inherited by all his 1st class heirs equally. It is not an ancestral property to be devolved upon the plaintiff on survivorship, as