Court ruled that ancestral property retains its character despite prior partition and upheld the validity of a Will despite exclusion of a natural heir.

JUDGMENT :

S. Sounthar, J.

The unsuccessful plaintiff in a suit for partition is the appellant. For the sake of convenience, the parties are referred to as per their rank in the suit.

2. According to the plaintiff, the plaintiff is the daughter of first defendant. The second defendant is the brother of the plaintiff and son of the first defendant. The defendants 3 and 4 are purchasers of suit 'B' schedule property from the second defendant. According to the plaintiff, the suit properties are ancestral properties of the family and the same was originally allotted to the share of the plaintiff's father's, father Sennimalai Gounder in a family partition dated 01.02.1957 involving said Sennimalai Gounder, his brother namely Ramasamy Gounder and minor Sennimalai Gounder. The suit 'A' and 'B' schedule properties were allotted to the share of Sennimalai Gounder. Subsequently, there was another partition in the family on 03.12.1980, whereunder, the properties were divided among Ponnusamy (father of plaintiff and second defendant), Sennimalai Gounder and Velusamy Gounder (another son of Sennimalai Gounder and brother of Ponnusamy Gounder). In the said partition, the properties described in ‘A’ schedule to partition deed was allotted to Sennimalai Gounder for life with vested reminder to Ponnusamy. The ‘B’ schedule to partition deed was absolutely allotted to the share of Ponnusamy. The above said Sennimalai Gounder died on 30.03.1986 and after his death, the plaintiff's father Ponnusamy got suit 'A' and 'B' schedule properties absolutely as per the terms of partition deed dated 03.12.1980. It was also stated that suit 'C' schedule property was purchased in the name of Ponnusamy by his father, Sennimalai Gounder out of income from ancestral property. The plaintiff's father Ponnusamy was suffering from cancer in the year 1995 and he died on 29.07.1995. After death of plaintiff's father, the plaintiff and second defendant were entitled to 4/9^th share each in the suit properties and the first defendant, mother of the plaintiff and the second defendant is entitled to 1/9^th share. It was also stated that the plaintiff's father had no right to execute any document in respect of plaintiff’s interest in the joint family property. The defendants 3 and 4 purchased suit 'B' schedule property from the second defendant. It was also stated that the second defendant sold the suit 'B' schedule property suppressing the 4/9th share available to the plaintiff in favour of defendants 3 and 4th and they were also impleaded as party to the suit.

3. The defendants 1 and 2 filed written statement and resisted the suit by contending that the suit 'C' schedule property was self acquired property of Ponnusamy. It was also stated that the suit 'A' and 'B' schedule properties were allotted to the share of Sennimalai Gounder with life estate and Ponnusamy was given vested remainder. As per the terms of said partition deed Ponnusamy got the property exclusively and enjoyed the same as absolute owner after death of Sennimalai Gounder. The defendants also raised a plea that Ponnusamy out of his free Will, executed a Will in favour of defendants 1 and 2 on 20.07.1995 As per the terms of the Will, the suit 'C' schedule property was bequeathed in favour of first defendant, his wife and suit 'A' and 'B' schedule properties were bequeathed in favour second defendant, his son. It was also stated that the defendants 1 and 2 celebrated the marriage of the plaintiff by providing 22 Sovereigns of gold with all kinds of Seervarisai. In the year 2004, the second defendant settled a portion of suit property, he got under the Will in favour of plaintiff and she accepted the same. The suit 'B' schedule properties were sold to the de