IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 12.03.2026 CORAM THE HONOURABLE MR.JUSTICE S.SOUNTHAR and C.M.P.No.323 of 2021 K.Jothivelu ... Appellant vs.

M.Balachandran ... Respondent PRAYER: Second Appeal is filed under Section 100 of the Code of Civil Procedure, to set aside the Judgment and Decree of the learned Subordinate Judge, Arakkonam dated 31.01.2020 made in A.S.No.40 of 2017 reversing the judgment and decree of the learned District Munsif, Arakkonam dated

29.06.2017 made in O.S.No.125 of 2007 by allowing the second appeal.

For Appellant : Mr.Jeremiah Gregory John For Respondent :Mr.K.Myilsamy

J U D G M E N T

The unsuccessful defendant in the suit is the appellant.

2. The respondent/plaintiff filed a suit for partition claiming half share in the suit property. The suit was dismissed by the trial Court and the First Appellate Court decreed the suit as prayed for by the plaintiff.

Aggrieved by the same, the defendant has come before this Court.

3. According to the respondent/plaintiff, the suit property originally belonged to Hindu joint family consisting his father Mahadeva Mudaliar, the defendant’s father Kumarasamy Mudaliar and one Adhimoolam Mudaliar. The plaintiff’s grandmother Manickammal was also living with them. There was a partition on 07.05.1986 in the family and item Nos.1 and 2 of the suit properties were allotted to the share of Adhimoola Mudaliar, under ‘C’ schedule to the partition deed. Item No.3 of the suit property was allotted to the above mentioned Manickammal for life with vested remainder to Adhimoola Mudaliar. The property allotted to Manickammal for life was described in schedule ‘D’ to the partition deed. Thus the present suit has been filed in respect of properties described in schedule ‘C’ and ‘D’ to partition deed dated 07.05.1986.

4. It is the further case of the plaintiff that Adhimoolam died intestate on 16.11.2006 without any issues. As per the Hindu Succession Act, the plaintiff and defendant are entitled to half share each in the suit property as class-II heirs. It is also pleaded that the sister of plaintiff died long back and sisters of the defendant already gave up their rights. Therefore, according to the plaintiff, he and the defendant are entitled to half share each in the suit property. Hence the suit was laid for partition of half share. He also sought for injunction restraining the defendant from alienating the suit property.

5. The appellant/defendant filed a written statement and resisted the suit claim mainly on the ground that Adhimoolam and Manickammal executed a registered Will on 02.08.1988 bequeathing the suit properties to the defendant. According to the defendant, after death of Adhimoolam and Manickammal, the Will came into force and he has been in possession and enjoyment of the property.

6. Before the trial Court, the plaintiff was examined as PW.1 and two other witnesses were examined as PW.2 and PW.3. On behalf of the plaintiff, four documents were marked as Exs.A1 to A4. The defendant was examined as DW.1. The attestor to the Will was examined as DW.2. The Sub Registrar in whose office the Will relied on by the defendant was registered had been examined as DW.3. On behalf of the defendant, seven documents were marked as Exs.B1 to B7. The certified copy of the Will was marked as Ex.X1 through DW.3.

7. The trial Court on appreciation of evidence available on record came to the conclusion that the Will relied on by the defendant was true. The trial Court also found that the plaintiff could not maintain a suit for partition during the lifetime of his father and hence dismissed the suit. Aggrieved by the same, the plaintiff has preferred A.S.No.40 of 2017 on the file of Subordinate Judge, Arakonam. The First Appellate Court reversed the above findings of the trial Court and decreed the suit as prayed for.

Aggrieved by the same, the defendant has come before this Court.

8. At the time of admission, this Court formulated the following substantial questions of law for consi