A.S.No.321 of 2016

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated : 18.04.2023

CORAM

THE HONOURABLE MRS.JUSTICE K.GOVINDARAJAN THILAKAVADI

A.S.No.321 of 2016

and

C.M.P.No.4082 of 2017

A.N.S.Rajasekaran

.. Appellant/Plaintiff

Vs

1.A.N.S.Appadurai

2.A.N.S.Rajan @ Gnanaselvam

3. A.N.S.Murugaiyan

... Respondents

Prayer: First Appeal has been filed under Order 41 Rule (1) of the r/w

Section 96 of the Civil Procedure Code against the judgment and decree

dated 29.02.2016 made in O.S. No.40 of 2013 on the file of the Principal

District Judge, Pondicherry.

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A.S.No.321 of 2016

For appellant : Mr.V.Ragavachari, Senior Counsel

For RR1

: Mr.K.Sathish Kumar

For R2

: Mr.T.Sai Krishnan

For R3

: MR.K.Sukumaran

J U D G M E N T

This Appeal Suit has been filed to set aside the judgment and decree

dated 29.02.2016 made in O.S. No.40 of 2013 on the file of the Principal

District Judge, Pondicherry.

2.The plaintiff in O.S.No.40 of 2013 on the file of the Principal

District Judge, Pondicherry is the appellant herein. The respondents are the

defendant in this suit. The plaintiff filed the said suit for partition and for

allotment of one half share in the ''A'' Schedule property. The Trial Court by

a decree and judgment dated 29.02.2016, has dismissed the suit with costs.

Challenging the same, the plaintiff is before this Court with this first appeal.

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A.S.No.321 of 2016

Brief averments of the plaint:

The plaintiff and the defendants are the sons of one Sachidanandam.

The suit “A” and “B” schedule properties were allotted to the father of the

plaintiff and defendants namely Sachidanandam by virtue of a Partition Deed

dated 23.01.1959, entered into between him and his brother

Muthukumarasamy. The said Sachidanandam died on 5.10.1997. During his

life time, he had executed a registered Will dated 21.7.1993, registered as

Document No.231 of 1993 in which he had bequeathed suit the “A” schedule

property situated at Old Door No.95, New Door NO.109, Kamatchi Amman

Koil Street, Puducherry, in favour of the plaintiff/appellant and the 3^rd

defendant. By the said Will, the said Sachidanandam had also allotted the

suit “B” schedule property namely Old Door No.12, New Door No.16. Nehru

Street (Mariamman Koil Street), Kadirkamam, Oulgaret Commune, in favour

of the 1^st and 2^nd defendants. The boundaries of the “A” and “B'' schedule

properties had also been mentioned in the Will. The father of the plaintiff and

the defendants divided the “A” schedule property by 17' x 40' each having

common pathway instead of dividing into 10.35'x80'. The plaintiff came to

know about the registration of the Will only recently. Taking advantage of

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A.S.No.321 of 2016

his absence, the 3^rd defendant had influenced the father Sachidanandam to

execute the said Will. The defendants are in joint possession and enjoyment

of the suit properties and have not divided the properties into metes and

bounds according to the registered Will dated 27.01.1993. However the 3^rd

defendant had put up a construction over the “A'' schedule suit property. The

plaintiff also sought a share in the family business. Since the defendants did

not come forward for partition of the properties, the plaintiff sent a legal

notice on 02.01.2013. Hence the suit.

Brief averments of written statement filed by the 1

st and 2

nd defendants:-

3. These defendants are unnecessary parties in this suit. These

defendants have been allotted with the “B” schedule suit property over which

the plaintiff had not sought for any relief. Their father Sachidanandam had

bequeathed the properties equally by allotting two shares in the suit “A”

schedule property to the plaintiff and the 3^rd defendant and allotting two

shares in the suit “B” schedule property to these defendants. The Will had

come into force and