BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 11.08.2021 CORAM:

THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN S.A.(MD)No.260 of 2008 Chellathai (Died) ... Appellant / 1^st Respondent / 1^st Defendant

2.Selvarani

3.Minor Chelciya 4.Minor Aravind (Minor 3 & 4 are represented by their mother and natural guardian A2)

(A2 to A4 are brought on record as Lrs of the deceased sole appellant vide order dated 08.01.2021 in C.M.P.(MD)Nos.11751, 11752 and 11754 of 2019)

-Vs-

1.Alagammal (Died) ... Respondent / Appellant / Plaintiff

2.Ramachandran 3.Pannerselvam

4.Franklin Joseph

5.Pandi 6.Palani

7.Selvaraj

8.Kumar 9.Jeyapal

10.Velusamy

11.V.Tamilvasan

12.M.Pandiyammal ... Respondents/Respondents / Defendants (R11 and R12 are brought on record as Lrs of the deceased R1 vide Court dated 08.01.2021 made in C.M.P.(MD)Nos.11747, 11748 & 11750 of 2019)

PRAYER: Second Appeal filed under Section 100 of the Civil Procedure Code, against the judgment and decree of the Principal District Judge, Madurai made in A.S.No.6 of 2007 dated 22.10.2007 reversing the decree and judgment of the Principal Subordinate Judge, Madurai made in O.S.No.

977 of 1998, dated 22.09.2006.

For Appellants : Mr.G.Prabhu Rajadurai For R1 : Died For R2 : Mr.J.Barathan for Mr.T.R.Jeyapalam For R3 : exparte For R9 : No appearance For R11 & R12 : Mr.V.Ramakrishnan

JUDGMENT

The contesting defendant in O.S.No.977 of 1998 on the file of the Principal Sub Court, Madurai filed this second appeal.

2.The first respondent herein namely Alagammal was the plaintiff in the said suit. She sought partition and separate possession of 1/2 share in the suit properties. During the pendency of the appeal, the original appellant as well as the first respondent passed away. The legal heirs of the first respondent were brought on record. One Selvarani claiming be the wife of the legatee of the Will said to have been executed by the appellant filed the application for setting aside the abatement arising out of the demise of the appellant. She also claimed to be the niece of the deceased appellant. The second respondent in the appeal, namely, Ramachandran also filed an application for setting aside the abatement and for transposing himself so that he could prosecute the second appeal. The application filed by Selvarani was allowed. But the issue as to who is the legal heir of Chellathai was left open.

3.The case of the plaintiff was that the suit properties belonged to her brother Kovilpillai. Chellathai / first defendant / appellant herein was his wife. Kovilpillai and Chellathai did not have any children. Kovilpillai died intestate on 01.07.1997. His parents had pre-deceased him. According to the plaintiff, as the only sister of Kovilpillai, she inherited his estate along with his wife Chellathai in equal shares. Since Chellathai was not coming forward for an amicable partition, she instituted the said suit for partition and separate possession of her 1/2 share in the suit 'A to E' schedule and 1/6^th share in the plaint 'F' schedule and for rendition of accounts. Chellathai filed written statement contesting the relationship projected by Alagammal. According to Chellathai, her husband Kovilpillai was the only son of her father-in-law. Kovilpillai died a Christian and she laid claim to the entire estate. According to the first defendant, the plaintiff was not the sister of Kovilpillai and that she was a stranger. The defendants 2 to 8 remained exparte. The defendants 9 and 10 filed written statements and they also opposed the claim of the plaintiff. Based on the rival pleadings, the trial Court framed the necessary issues. The plaintiff examined herself as P.W.1 and one Tamilvasan as P.W.2. Chellathai examined herself as D.W.1 and 9^th defendant Jeyapaul examined himself as D.W.3 and one Raja was examined as D.W.2. Ex.A1 to Ex.A16 were marked. Ex.B1 to Ex.B3 were marked. After a consideration of the evidence on record, the learned trial Judge by judgment and decree dated 22.09.2006 dismissed the suit. Challenging the sam