IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 13.06.2024 CORAM:

THE HON'BLE MRS.JUSTICE T.V.THAMILSELVI S.A. No.357 of 2024 and C.M.P.No. 11104 of 2024 S.M. Arumugham (Died)

2 Bakkiyam

3 A. Mohana Krishnan

4 A. Kesavan ( Appellants 3 and 4 brought on record as LRs of the Deceased

1^st appellant vide C.M.P.No. 9797 of 2022 in S.A.SR.No. 68945 of 2014)

.. Appellants Vs

1 Malathi

2 Minor Vishnu Rep. by his guardian mother Malathi

3 V. N. Chenniappan Thangamani (Died)

5 V.C. Chennimalai

6 Kanagavalli Devi (Died)

8 N. Rangasamy

9 R. Pradeep

10 Dhivya Priya (Respondents 3, 5, 6 & 7 are LRs. of 4^th respondent and they are already on record Memo recorded)

(Respondents 8 to 10 are brought on record as LRs. of deceased 7^th respondent vide order of court dated 28.08.2023 made in C.M.P.No.9798 of 2022 in S.A.SR.No. 68945 of 2014) .. Respondents PRAYER : Second Appeal filed under Section 100 of Code of Civil Procedure, to set aside the judgment and decree dated 17.12.2013 in A.S.No. 22 of 2013 on the file of the Principal District Judge, Erode modifying the judgment and decree made in O.S.No.383 of 2009 dated

30.11.2022 on the file of Subordinate Judge, Perundurai.

For Appellants : Mr.T.Dhanasekaran

JUDGMENT

The appellants herein are the 6^th and 7^th defendants in the suit have preferred this Second Appeal challenging the findings of the courts below in the Appeal Suit in A.S.No. 22 of 2013 on the file of Principal District Judge, Erode modifying the judgment and decree passed in O.S.No.383 of

2009 on the file of the Subordinate Court, Perundurai.

2. For the sake of convenience, the parties are referred as per the ranking in the suit.

3. Brief facts of the case is as follows :-

Before the trial court, the respondents 1 and 2/plaintiffs filed a suit for the relief of partition in O.S.No.383 of 2009 on the file of Subordinate Judge, Perundurai. The plaintiffs are wife and daughter of one deceased Chidambaram. The 1^st defendant is V.N.Chenniappan and the 3^rd defendant V.N.Chennimalai is the son of 1^st defendant, thereby, the defendants 1 and 3 and the said Chidambaram are undivided Hindu joint family members. The 4^th and 5^th defendants are daughters of 1^st defendant and they have already got married before the year of 1990. The first item of suit property is ancestral property of 1^st defendant. The 2^nd and 3^rd item of suit properties were purchased by the 1^st defendant, as a kartha of the family with the income derived from the ancestral property. Therefore, the plaintiffs claimed 1/3^rd share as legal heirs of deceased Chidambaram in the ancestral property, which is specified as 1^st item of suit properties. However, the relationship alone is admitted, but the other facts are denied.

4. The contention of 1^st defendant is that he purchased item Nos.2 and

3 of the suit properties in the year of 1983 and 1992 and the same are his self-acquired property, but he has not produced any proof for the income derived from the ancestral properties. In respect of 1^st item of suit property, there are other sharers, but their share was not calculated. Therefore, they have denied the plaintiffs share.

5. Before the trial court, both parties adduced evidence. Issues framed. In respect of 1^st item of suit property, the plaintiffs contention is that the agricultural lands lying in R.S.No. 264/14 and 15 and R.S.Nos. 338/1 and 335/7 residential houses situated in the above survey numbers are the ancestral properties of 1^st defendant. But the 1^st defendant would content that land in R.S.No.264 alone is ancestral property. But, as per the evidence of P.W. 1, Patta No.524, Patta No.246, 'A' register extract for R.S.No.264/11, 'A' register extract for R.S.No. 264/11, 'A' register extract in R.S.No.264/15 are marked as Ex.A1 to Ex.A5, which stands in the name of Nanjappa gounder, who is father of 1^st defendant. But, there is no contra evidence on the side of plaintiffs to prove that only one survey No.264 alone is the ancestral property. Therefore, by relying Ex.A1 to Ex.A5, item No.1 of sui