Possession of a co-owner is presumed joint unless ouster of the other is pleaded and proved.

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 28-04-2026 CORAM THE HON'BLE MR.JUSTICE S. SOUNTHAR AND CMP NO. 10496 OF 2026 T.K.Balakrishnan S/o.T.P.Kandasamy, New D.No.186, II Agraharam, Salem 634 001.

..Appellant(s)

Vs T.K.Rajarathinam S/o.T.P.Kandasamy, No.24, A.P.Koil St, Salem 636 001. ..Respondent(s)

PRAYER : Appeal filed under Section 100 of C.P.C., to set aside the judgment and decree dated 19.12.2025 passed in AS.No.84 of 2025 on the file of the Principal District Judge, Salem, which confirmed the Fair and Final Order dated 24.08.2024 passed in O.S.No.132 of 2018 on the file of the II Additional Subordinate Judge, Salem.

For Appellant(s): Mr.S.S.Rajesh

Judgment

This Second Appeal has been filed to set aside the judgment and decree dated 19.12.2025 passed in AS.No.84 of 2025 on the file of the Principal District Judge, Salem, which confirmed the judgment and decree dated

24.08.2024 passed in O.S.No.132 of 2018 on the file of the II Additional Subordinate Judge, Salem.

2. Heard the learned counsel for the appellant and perused the materials available on record.

3. The unsuccessful defendant is the appellant herein. The respondent herein filed a suit for partition of 1/2 share in the suit property. The suit was decreed by the Trial Court. Challenging the same, the defendant preferred a First Appeal in A.S.No.84 of 2024. The findings of the Trial Court were confirmed by the First Appellate Court. Aggrieved over the same, the defendant has filed this Second Appeal.

4. According to the respondent / plaintiff, the suit property was originally belonged to the father of the plaintiff and the defendant viz., T.P.Kandasamy. He executed a registered Will on 30.06.1997 bequeathing the suit properties to the plaintiff and the defendant. As per the terms of the Will, the plaintiff and the defendant were given 1/2 share in the ground floor of the building morefully described in Schedule I of the plaint. The defendant was given exclusively right over the first floor of the building described in the Will.

5. The defendant herein filed a suit is O.S.No.551 of 2003 on the file of the Principal Sub Court, Salem, seeking cancellation of the above said Will executed by his father and to declare the suit property along with the first floor, belonged absolutely to the defendant and also for a consequential injunction. The suit was decreed by the Trial Court. Aggrieved by the said judgment and decree, the plaintiff preferred a First Appeal in A.S.No..39 of 2008, on the file of the Principal District Court, Salem. The First Appellate Court allowed the First Appeal filed by the plaintiff and dismissed the suit filed by the defendant. Challenging the same, S.A.No.709 of 2009 was filed by the defendant and the same was dismissed by confirming the judgment and decree passed by the First Appellate Court. Thus, the truth and validity of the Will executed by the father of the parties were affirmed and both the plaintiff and the defendant were entitled to the property as per the terms of the Will.

6. The plaintiff requested the defendant to divide the suit property in terms of the Will. However, the defendant failed to do so. Hence, a legal notice was issued on 30.04.2017, calling upon the defendant to make arrangements to divide the property. Despite the same, the defendant has not come forward to divide the suit property. Hence, the present suit has been filed seeking partition.

7. The appellant / defendant filed a written statement again denied the execution of the Will by his father. The defendant also claimed that the plaintiff was not in joint possession of the suit property as alleged by him. It was further stated by the def