JUDGMENT

The present Second Appeal arises against the judgment and decree of the Court of learned Subordinate Judge, Sankari in A.S.No.32 of 2011 dated 24.09.2012 in reversing the judgment and decree in O.SNo.54 of 2009 dated 17.10.2011 on the file of the learned District Munsif, Sankari.

2. A suit in O.S.No.54 of 2009 had been filed for partition and separate possession. The relationship between the parties is not in dispute.

3. The suit properties were self- acquisition of one Angu Muduliar.

He had two sons and five daughters. His first son is one Muthu Kumar and the second son is one Chinnusamy, who married one Nagammal, the third defendant herein and begotten two children by name, Senathi Mudali @ Elangovan, who is the first defendant herein and Sengottuvelu. Visaka Mudali is the first son of Muthu Kumar, who is the appellant before me. Before the trial Court, he was arrayed as the second defendant. Sengottuvelu died on 18.02.1989. His legal heirs namely, his wife Geetha and son namely, Sakthivel were arrayed as plaintiffs 1 & 2, who presented the suit. The genealogical tree of the parties is given below:

Angu Mudaliar Chinnusamy (2nd son) + Wife Nagammal (D3) Muthukumar (1st Son)

Arumugham (brother) (D4)

(son)

Visaka Mudali (D2)

Sengottuvelu Senathimodali@Elangovan (D1)

Geetha (P1) (wife) Sakthivel (P2)(son)

4. Angu Mudaliar executed a Will on 30.06.1966 bequeathing the property in favour of his two grandsons by name, Senathi Mudali @ Elangovan (1st defendant) and Sengottuvelu, from his second son Chinnusamy. On the date of the execution of the Will, Senathi Mudali and Sengottuvelu were minors and therefore, he appointed Chinnusamy as their guardian. Angu Mudaliar died on 24.03.1972 and the Will came into force. Though Chinnasamy does not have right or title over the suit property other than being the guardian of the minors, he executed a Settlement Deed on 17.05.1972. in favour of his elder brother Muthu Kumar's son, namely Visaka Mudali. He had constructed a house and has permitted Visaka Mudali to be in possession and occupation of suit schedule mentioned property as a permissive occupant. Chinnusamy died in the year 2005 and the present suit for partition came to be presented in the year 2009 by the plaintiffs, who are the wife and son of Sengottuvel, who is one of the beneficiaries of the Will.

5. Before the trial Court, the following issues were framed:

(i) Whether it is true that the plaintiffs are entitled to half undivided share in the suit property?

(ii) Whether the plaintiffs are entitled to the relief of preliminary decree for partition as prayed for?

(iii) To what other reliefs, the plaintiffs are entitled to?

6. The first plaintiff who is the mother of the second plaintiff namely Geetha, entered witness box and deposed as PW1. She marked 5 documents. The fourth defendant namely, Arumugam, the brother of Nagammal, who is the wife of Chinnasamy Mudaliar entered witness box as DW 1 and the second defendant/first appellant before me, namely, Visaka Mudaliar was examined as DW2. They marked Exs.B1 to B6.

7.The trial Court came to the conclusion that the plaintiffs are entitled to succeed since the second defendant had put up construction over the suit property and had been in possession and occupation of the same for over 20 years and held that the suit for partition is barred by time.

8. On appeal before the learned Subordinate Judge at Sankari, the judgment and decree was reversed and a preliminary decree for partition was granted. Against reversing the judgment and decree of the trial Court, the present Second Appeal has been presented.

9.This Court admitted the Second Appeal based on the following substantial questions of law:

(i)Whether the Courts below were right in relying upon the Will, viz., Ex.A1, when the appellant has admitted the execution of Ex.A1, by Angu Mudaliar, in his written statement but denied the allegation that it was executed by Angu Mudaliar while he was in a sound and disposing state of mind?

(ii)Whether