The main legal point established in the judgment is the entitlement of legal heirs to the share of the deceased's properties, based on evidence and the validity of the Will.

JUDGMENT

(Prayer in A.S.No.499 of 2017:- Appeal Suit is filed under Section 96 r/w Order XLI Rule 1 of C.P.C., to set aside the judgment and decree dated 22.03.2017 passed in O.S.No.142 of 2013 on the file of the III Additional District Judge, Salem.

In A.S.No.221 of 2017:- Appeal Suit is filed under Section 96 r/w Order XLI Rule 1 of C.P.C., to set aside the judgment and decree dated 22.03.2017 passed in O.S.No.142 of 2013 on the file of the III Additional District Judge, Salem, so far as it relates to granting a preliminary decree for partition in favour of the plaintiff in respect of Item Nos. 1 to 3 of the 'A' schedule suit properties.)

Common Judgment:

1. A.S.No.499 of 2017 has been preferred challenging the judgment of the learned III Additional District Judge, Salem dated 22.03.2017 made in O.S.No.142 of 2013.

2. A.S.No.221 of 2017 has been preferred challenging the judgment of the learned III Additional District Judge, Salem dated 22.03.2017 made in O.S.No.142 of 2013, so far as it relates to granting a preliminary decree for partition in favour of the plaintiff in respect of Item Nos. 1 to 3 of the 'A' schedule suit properties.

3. The shorts facts of the case are as under:-

The appellant in A.S.No.499 of 2017 is the second defendant in the suit and the defendants 4 to 6 are the appellants in A.S.No.221 of 2017. The suit has been filed by the first respondent/Ramani for partition and separate possession. The plaintiff, 2nd and 3rd defendants are the daughters of the deceased first defendant/Kandasamy. Kandasamy had a son, by name Kanikachalam and he also died. The defendants 4 to 6 are the legal heirs of late Kanikachalam. The suit items 1 to 3 of 'A' schedule properties originally belong to plaintiff's mother Chellammal by virtue of sale deeds dated 07.02.1965, 07.09.1978 and 17.07.1981. The fourth item of the suit properties was purchased by Chellammal on 27.08.1973 in the name of her son Kanikachalam. Chellammal was in enjoyment of all the four items in the suit 'A' schedule properties and she later executed a Will on 18.04.1991 in favour of her son, but later revoked the same on 22.05.2006. Kanikachalam predeceased Chellammal on 31.07.2003 and Chellammal also died on 21.07.2007. In 'B' schedule property, Chellammal was conducting a grocery shop while she was alive. After her demise, the shop was run by her children who are the plaintiff and defendants 2 and 3. Subsequent to the death of Chellammal, the father of the plaintiff, namely the first defendant has filed the suit in O.S.No.223 of 2008 on the file of the Fast Track Court - II, Salem, but later, it was dismissed for default. Since the defendants did not come forward to partition the properties, the plaintiff who is the co-sharer, has filed this suit for partition.

4. The second defendant resisted the suit by stating that the plaintiff got married in the year 1976 and at that time itself, she had orally released her rights, if any, in the suit properties. It is not correct to state that Chellammal died without executing any documents. The Provision Stores in 'B' schedule property, run in the name of “Chellam Provision Stores”, belongs to the second defendant. The plaintiff has no right over the same. The first defendant has filed the suit for partition in respect of item Nos.1 to 3 and the same was dismissed. Even though the deceased/Chellammal has executed an unregistered Will in respect of 'A' schedule property in favour of the second defendant, the other parties objected to the same and filed the suit unnecessarily and hence the plaintiff is not entitled to the relief as prayed for.

5. The defendants 4 to 6 have stated that the 4th item of the suit property was purchased in the name of Kanikachalam and he was only conducting the Grocery shop. After the demise of Kanikachalam, the fourth defendant, who is his wife, was conducting the Provision Store. The deceased/Chellammal has executed a Will dated 07.07.2007 and the plaintiff has got married many years ago and has