The central legal point established is the recognition of ancestral properties and the source of income for property purchase in determining property rights.

JUDGMENT

(Prayer: First Appeal filed Order XL1, Rule 1 r/w. Section 96 of C.P.C., against the judgment and decree dated 25.09.2014 in O.S.No.89 of 2011 on the file of the III_Additional District and Sessions Judge, Salem.)1. The 1st defendant in O.S.No.89 of 2011 on the file of the IIIAdditional District and Sessions Court, Salem is on appeal, against the preliminary decree granted in the said suit, declaring that the plaintiffs therein are entitled to 2/3rd share in the suit “A” and “B” schedule properties.

2. The plaintiffs, who are the son and daughter of the appellant born through his first wife, Ramayee Ammal filed the suit, seeking 2/3rd share in “A” and “B” schedule properties, contending that the suit “B” schedule properties are ancestral properties and suit “A” schedule property purchased by their grand father, Pachiyannan from and out of the income from the ancestral properties in the name of the 1st defendant / appellant. Therefore, according to the plaintiffs, they being the children of the first wife and coparcenors, they are entitled to 2/3rd share in the suit properties.

3. The said suit was resisted by the defendants, contending that the suit “B” schedule properties are not available at all and the suit “A” schedule properties were purchased by the first defendant from and out of his income, which he got out of his employment in Dalmia Magnisites.

4. On the above pleadings, the Trial Court framed the following issues:-

“i) Whether the plaintiffs are entitled to 2/3rd share in the suit properties.

ii) To what relief are the plaintiffs entitled to?”

5. At trial, the plaintiff was examined as P.W1 and one Muthu, an attestor to the sale deed dated 02.09.1991 under which, the suit “A” schedule properties were purchased as well as a cousin brother of the 1st defendant was examined as P.W.2 and Exs.A1 to A5 were marked. On the side of the defendants, the 1st defendant was examined as D.W.1 and one Kandasamy was examined as D.W.2. Exs.B1 and B2 were marked.

6. The Trial Court, on a consideration of the evidence particularly, certain vital admissions made by P.W.2 in his evidence concluded that the suit “A” and “B” schedule properties are ancestral properties and the suit “A” schedule properties were purchased from and out of the income from the “B” schedule properties in the name of the first defendant. On the said conclusion, the Trial Court granted a preliminary decree as prayed for. Aggrieved, the defendant is on appeal. It is pertinent to point out, the purchaser namely, 5th defendant has not come up with an appeal against the said decree.

7. We have heard Mr.R.Nalliyappan, learned counsel for the appellant and Dr.P.Jagadeesan, learned counsel for the 1st and 2nd respondents. The other repondents though served, not appearing either in person or through counsel, duly instructed.

8. Mr.R.Nalliyappan, learned counsel for the appellant would vehemently contend that the plaintiffs have not established that the suit “B” schedule properties are ancestral properties. He would contend that suit “B” schedule properties were purchased by Pachiyannan, and they would not part take character of the ancestral properties. As regards the “A” schedule property, the learned counsel would contend that the fact that appellant was employed in Dalmia Magnisites having been admitted and the fact that the sale deed stands in his name are sufficient to prove that the suit “A” schedule properties were purchased out of the income of the 1st defendant from his employment.

9. Contending contra, Dr.P.Jagadeesan, learned counsel for the respondents 1 and 2 / plaintiffs would submit that though the 1st defendant had projected a case of denial of the very existance of the “B” schedule properties in his written statement, he had admitted the existence of “B” schedule properties and their character as ancestral properties in his proof affidavit and his cross-examination.

10. The learned counsel would also draw my attention to th