The legal rights of the legal heirs under the Hindu Succession Act, 1956, particularly Sections 8 & 15, and the validity of the Muchalika in determining the entitlement to the property.

JUDGMENT

(Prayer:- This Appeal Suit has been filed, under Order 41 Rule 1 read with Section 96 of CPC, against the judgement and decree, dated 17.04.2015, made in OS.No.59 of 2013, by the Principal District Judge, Salem.)

1. This Appeal Suit has been filed, against the judgement and decree, dated 17.04.2015, made in O.S.No.59 of 2013, by the Principal District Judge, Salem.

2. For the sake of convenience, the parties are referred to as they are arrayed before the trial court.

3. The case of the Plaintiff, as set out, in the plaint is that the Defendant is the father of the Plaintiff. The suit property and other properties were allotted to the Plaintiff and the Defendant in a registered partition took place on 25.03.1987 between the defendant, his brother and his parents. Subsequently on 09.06.1988, the Plaintiff and the Defendant have entered into a registered partition, dividing the properties among themselves, which were allotted to them in the earlier partition. The suit property was not included in the subsequent partition since the suit property was left in possession of the parents of the Defendant for their sustenance. A Panchayat Muchalika was written and signed by all concerned to the effect that after the life of the grand parents of the Plaintiff, the suit property shall be divided into two shares and the Plaintiff and Defendant shall take one share each. The grand father of the Plaintiff Subbaraya Gounder died about 9 years back and his grand mother Perumayee Ammal died on 28.02.2012 and therefore, the Defendant is in possession and enjoyment of the suit property. After the demise of the grand parents of the plaintiff, he demanded his father to divide the suit properties into two shares and allot one such divided share. However, the demand of the Plaintiff for partition of the suit properties was denied. The plaintiff is deemed to be in the joint and constructive possession of the suit property along with his father. Finally on 02.02.2013 the Plaintiff demanded the Defendant to effect partition of the suit property and it was flatly refused. Hence, the suit in O.S. No.59 of 2013 was filed on the file of the Principal District Judge, Salem, for partition to divide the suit property into two shares and allot one such divided share to the Plaintiff and put him in possession of the same.

4. The case of the Defendant, as set out in the written statement, is that the suit property was not rightly included in the subsequent partition in as much as it was the property of the mother of the Defendant, the same having been assigned to her by the State. The inclusion of the suit property in the deed of partition dated 25.03.1987 and allotment of it to the share of the Defendant in the said deed cannot, by any stretch imagination, impress it with the character of either ancestral property or the joint family property. The suit property has always been only the separate property of the Defendant's mother. The Panchayat Muchalika referred to in the plaint is a forgery and the defendant never signed any Panchayat Muchalika. As the defendant is in possession of the property, the Plaintiff is not entitled to any share in the suit property and the demand of partition is illegal. The partition between the Plaintiff and the Defendant took place on 09.06.1988. The Plaintiff himself knows well that the suit property was the separate property of Perumayee Ammal who is the mother of the defendant and that is why it was not included in the partition dated 09.06.1988 and after 25 years, the Plaintiff has filed this vexatious suit seeking for partition. The allegation that he is in joint and constructive possession of the suit property is false. The Plaintiff has filed this suit to grab the suit property which is absolutely belongs to this defendant. Hence, the suit is liable to be dismissed.

5. Based on the pleadings of the parties, the following issues were framed by the Trial Court:-

1. Whether the Plaintiff is entitled for partition in respe