The court affirmed that ancestral property rights under the Hindu Succession Act grant a daughter the right to claim partition; a Will must be proven validly to be binding.

JUDGMENT :

P.B. BALAJI, J.

1. The defendants 4 and 5 in the suit for partition are the appellants, aggrieved by the preliminary decree granted by the Trial Court in O.S. No.84 of 2012.

II. PLEADINGS:

2........ 

(1) Plaint in brief:

The plaintiff is the daughter of the second defendant, through the second defendant's first wife, Thulasimani and the defendants 1 to 4 are sons of Arumuga Gounder, who died intestate in or about 1994. First item of the suit property is the ancestral and joint family property of deceased Arumuga Gounder and defendants 1 to 4. In a partition deed dated 23.02.1952, Arumuga Gounder was allotted 'C' Schedule, the said partition having been entered into amongst the brothers and mother, Valliammal. On the death of Arumuga Gounder, the defendants 1 to 4 succeeded to the estate and have been enjoying the first item of suit property. From and out of income derived from the 1^st item, Item 2 was acquired through sale deed dated 27.11.1996. The plaintiff was married on 28.10.1992 and in terms of amendment to Section 29 of the Hindu Succession Act by Act 1 of 1990, the plaintiff is entitled to 1/8^th share in both Items 1 and 2. The plaintiff and the defendants have been in joint possession and enjoyment of the suit property ever since from the death of Arumuga Gounder. The defendants who were sharing the income from the suit properties to the plaintiff, suddenly stopped paying the income for the last one year, prior to filing of the suit. The plaintiff issued a notice 29.12.2010 and a reply notice was sent on 10.11.2011 making false and vexatious claims. The claim of the father Natarajan that the first item of suit property is a self acquired property of Arumuga Gounder and that Arumuga Gounder executed a Will on 20.02.1996 in favour of his grandson is not true. The Will has been brought about with ulterior motive to defeat the plaintiff's right for partition. The alleged Will has also not been acted upon and the beneficiary, the 5^th defendant, son of the 4^th defendant was never in possession and enjoyment of the properties at any point of time. The Will is a fabricated document and not binding on the plaintiff.

(2) With regard to suit Item II as well, the plaintiff states that the property being treated as the self acquired property and settlement being effected by the second defendant in favour of his son is invalid and not binding on the plaintiff. The settlement was in fact brought about after the issuance of the pre-suit notice claiming partition. The settlement deed had also not been acted upon. The plaintiff is therefore entitled to the relief of partition.

(2) Written Statement and Additional Written Statement of the 2^nd defendant adopted by the defendants 1, 4, 5 and 7 to 10 in brief:

The relationship between the parties is admitted. The suit properties are not joint family properties of Arumuga Gounder. Hence, the provisions of Section 29(a) by Amendment Act 1 of 1990 would not apply. The first item of the property absolutely belonged to Arumuga Gounder and he had every right to bequeath the same under the Will. Accordingly, the Will dated 20.02.1996, in favour of grandson Vivek, is valid and binds the plaintiff. The second defendant was working in Tiruppur from 1973 and he was running Peeli Knitting Company and was earning well till 1996 and only out of the said income from his Knitting Company, the second defendant purchased item II. The II item of the property is the absolute property of second defendant and he had every right to settle the property on his son. The suit is therefore liable to be dismissed. Further, the settlee viz., son of the second defendant, Sureshkumar is not added as a party and hence, the suit is liable to be dismissed on the ground of non joinder of necessary parties as well. The plaintiff settled down with her mother from 1981 onwards and thereafter, there has been no contact between the plaintiff and the defendants. The plaintiff's self serving claims that the defendants have been p