JUDGMENT

(Prayer: This Second Appeal is filed under Section 100 of Civil Procedure Code against the judgment and decree dated 19.02.2020 made in A.S.No.59 of 2017 on the file of the learned Principal Subordinate Judge, Erode, confirming the judgment and decree dated 22.09.2017 made in O.S.No.170 of 2014 on the file of the learned District Munsif -cum- Judicial Magistrate, Kodumudi.)

Judgment

1. This Second Appeal is directed against the concurrent judgments and decrees of the courts below.

2. Appellant filed the suit for declaration that the Will dated 01.07.2014 executed by Kuppusamy Naidu is not true, valid and unenforceable; (2) to divide the suit properties into 16 equal shares and allot 5 such shares to her; (3) for injunction restraining the second defendant from selling or alienating the suit properties; (4) and for costs.

3. The case of the appellant is that the first respondent is her mother, second respondent is her brother, fifth respondent is her sister, third and fourth respondents are the children of second respondent. She filed the suit against the respondents claiming that the suit items 1 to 6 are ancestral properties, items 7 and 8 were purchased by their father Kuppusamy Naidu from the income derived from items 1 to 6 of the suit properties. Thereafter, their father died on 02.07.2014 leaving her, mother, brother and sisters as his legal heirs. Suit properties were enjoyed by appellant, mother and respondents 2 to 5 as joint family properties. Both the kidneys of Kuppysamy Naidu became dysfunctional and he was bedridden. He died on 02.07.2014. Before his death a Will was said to have been executed by Kuppusamy Naidu in favour of the second respondent on 01.07.2014 at Velakoundapatti Sub-Registrar Office. This Will was not executed by Kuppusamy Naidu when he was in sound disposing state of mind. It was created by the second respondent to deny share in the suit properties to appellant and fifth respondent. Assuming that the Will is true, Kuppusamy Naidu can execute a Will only in respect of his 1/4 share in the suit properties. He has no right to execute the will in respect of all the suit properties. When the appellant demanded the respondents to divide the suit properties and allot her share, the second respondent refused. Therefore, this suit.

4. It is seen from the written statement filed by the second respondent that he denied that item-2 of the suit properties is ancestral property. His claim shows that item-3 of the suit properties was purchased by Kuppusamy Naidu in 1967 and he bequeathed this property to him through a will dated 01.07.2014. Appellant was married 47 years back and fifth respondent was married 37 years back. They were provided with all the seer. Kuppusamy Naidu's ancestral properties are manavari rain fed lands. They were not suitable for agriculture. No income was generated from ancestral properties. Therefore, Kuppusamy Naidu shifted to Nagammanaickanpalayam in 1965. He took lease of lands and engaged in agriculture, apart from involving in business of selling coconut and plantain. He was also running bullock carts for his income. From the income derived from his independent aforesaid sources, he purchased items 7 and 8 of the suit properties. Neither the appellant nor the respondents have contributed to the purchase of these properties. Appellant and fifth respondent never enjoyed the suit properties jointly. When appellant, her husband and son tried to intervene Kuppusamy Naidu's possession and enjoyment in item No.7 of the suit properties, he filed the suit in O.S.No.127 of 2013 for permanent injunction and obtained a decree in his favour. Kuppusamy Naidu had executed a Will on 01.07.2014 in respect of the suit properties in favour of the second respondent, while he was in sound disposing state of mind and without any one's influence and of his free will/mind. Next day, he died and the last rites were performed by the second respondent. As per the Will, second respondent is enjoying the