Property inherited through partition within a family is categorized as ancestral, and upon the death of owners, equitable distribution among surviving legal heirs is mandatorily required for the final settlement of property shares.

PRAYER

To set aside the Decree and Judgment dated 15.04.2019 and made in AS.No. 42 of 2015 on the file of the Additional Sub-Judge at Namakkal confirming the decree and Judgment dated 20.04.2015 and made in OS.No. 1134 of 2004 on the file of the Additional District Munsif Court, Namakkal.

JUDGEMENT

This second appeal has been filed seeking to set aside the Decree and Judgment dated 15.04.2019 made in AS.No. 42 of 2015 by the Additional Sub-Judge at Namakkal whereby, the 1st appellate Judge reversed the decree and Judgment dated 20.04.2015 made in OS.No. 1134 of 2004 on the file of the Additional District Munsif Court, Namakkal.

2. Challenging the findings of the courts below, the defendants 1, 2 and 3 preferred this second appeal. While pending proceedings, 1st defendant died; already his legal heirs are on record, and his wife also died, her legal heirs also already on record. There is no necessity to file separate application to implead the legal heirs.

3. Before the trial court, the 1st respondent herein/plaintiff filed the suit for partition claiming 1/4 share in the suit property against 6 defendants by stating that the plaintiff is the elder son and 2nd and 3rd defendants are the brothers of the plaintiff who are the sons of the 1st defendant through his wife Tmt. Palaniammal. The suit properties originally belongs to one Palaninaicker. He died leaving behind his sons and daughter namely P. Subbrayan and P. Duraisamy/1st appellant and Mrs. Rukmani. After demise of Palaninaicker among his sons and daughter there was partition happened in the year 2021. In which ‘B’ scheduled properties were allotted to 1st appellant/1st defendant/plaintiff’s father, which is suit property herein i.e., entire vacant land and tiled house. Further, the plaintiff contributed money to construct the tiled house. Plaintiff’s mother died in the year 2011. Some of the portions of the tiled houses were left for tenancy in which defendants No.4 and 5 were in tenancy of the portion of the tiled house suit properties. Hence, they were added as defendants 4 to 6. According to the plaintiff, 1st defendant has attempted to grab the property, therefore the plaintiff/1st respondent herein come forward with this suit claiming 1/4 share in the suit property. The defendants 1 to 3 contested the case. According to the defendants, suit property is separate property of the 1st defendant not an ancestral property. Therefore, the plaintiff has no right to seek partition and not entitled to division.

4. On the side of plaintiff P.W.1 is examined and marked 12 documents. On the other side, D.W1. Was examined and marked 19 documents.

5. Upon considering both side submissions, the trial judge has held that suit property is allotted to the father of the 1st defendant/1st appellant in the partition so the property is deemed as separate property of the 1st appellant herein, accordingly suit was dismissed. Against which, appeal was filed in AS.No. 42 of 2015 on the file of the Additional Sub-Judge at Namakkal, upon considering the facts and the circumstances of the case, the first appellate judge held that the property originally purchased by the Kartha of the plaintiff, therefore, it is considered as ancestral property which was bought through the sale deed of the year 1934 which was marked as exhibit B2 and also settlement deed marked as exhibit B1 of the year 1952. Accordingly, 1/4 share was allotted to the plaintiff/1st respondent herein. Accordingly, the decreed the suit as prayed for.

6. Challenging the same the defendants 1, 2 & 3, who are father and the brothers of the plaintiff/1st respondent herein filed this Second appeal.

7. Heard both sides.

8. While pending appeal, father/1st appellant/1st defendant executed settlement in favour of three so