IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 17.11.2023 CORAM THE HONOURABLE Ms. JUSTICE P.T. ASHA S.A.No.209 of 2021 &

C.M.P. No. 4175 of 2021 S.Athilakshmi ... Appellant Vs

1.Ramakrishnan

2.S.Munusamy ... Respondents Prayer : The appeal is filed under Section 100 of the Code of Civil Procedure against the Judgement and Decree dated 30.07.2020 made in A.S.No. 21 of 2014 on the file of the Principal District Judge, Kancheepuram at Chengalpattu and modifying the Judgement and Decree dated 21.12.2011 passed in O.S.No. 7 of 2009 by the Principal Subordinate Judge, Chengalpattu.

For Appellant : Mr. K.C. Karl Marx For Respondents : Mr. J.Manoharan

JUDGEMENT

The plaintiff in a suit for partition is the appellant before this Court challenging the Judgement and Decree in A.S.No.21 of 2014 of the Principal District Judge, Kancheepuram at Chengalpattu, in and by which the learned Judge had modified the Judgement and Decree of the learned Principal Subordinate Judge, Chengalpattu in O.S.No.7 of 2009. The facts necessary for disposing of the Second Appeal is herein below set out and the parties are referred to in the same litigative status as before the Court.

2. The plaintiff had filed the above suit seeking partition of her

1/3^rd share in the suit schedule property, which are agricultural lands measuring an extent of 7.35 acres and for a permanent injunction restraining the defendants or any other persons claiming under them from alienating the same.

3. It is the case of the plaintiff that she and the defendants are the children of Seetharam Naidu who had died on 07.01.2000. The said Seetharam Naidu died leaving behind him surviving his wife, Radhammal his sons the defendants and daughter, the plaintiff to succeed to his estate. The wife of the said Seetharam Naidu also died on 19.02.2007 leaving behind her surviving the plaintiff and the defendants as her legal heirs to succeed to her estate.

4. The plaintiff would submit that the property in question is an ancestral property, since her grand father Raghavalu Naidu had owned the extent of 6.50 acres of agricultural lands in Konadhi Village and 0.85 cents in Kattankulathur Village of Chengalpattu District. On the death of the said Raghavalu Naidu, the plaintiff's father became the absolute owner and after him the property devolved on his wife and children, the plaintiff and the defendants herein. On the death of the mother, it was only the plaintiff and the defendants who were entitled to the suit properties. The plaintiff would submit that despite her several requests asking her brothers to effect partition, they had not come forward to effect the same. Therefore, the plaintiff has come forward with the suit for partition.

5. The 1^st defendant alone had filed a written statement and the

2^nd defendant remained an ex parte.

6. It is the case of the 1^st defendant that their father was the absolute and exclusive owner of the properties at Konadhi village and Kattankulathur village and not his grand father Raghavalu Naidu. His grand father has not purchased any of the property and therefore the contention of the plaintiff that these properties are ancestral properties were denied. The 1^st defendant would further submit that his father Seetharam Naidu during his life time had executed a Will bequeathing the property to his grand sons, Dhanasekaran and Dhinakaran, sons of the 1^st defendant and Saravanan, son of the 2^nd defendant under a registered document dated 07.07.1997 on the file of the Sub Registrar, Chengalpattu. On the death of the said Seetharam Naidu, the Will came into effect and therefore the suit for partition filed by the plaintiff is not maintainable, particularly when the properties are the self acquired properties of the said Seetharam Naidu and he had deemed it fit to bequeath the properties on his grand sons.

7. The 1^st defendant would submit that during his life time, the said Seetharam Naidu had celebrated the marriage of the plaintiff with great pomp and show, gifting her Gold