S.A(MD)No.38 of 2012

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

Reserved on : 09.06.2026

Pronounced on : 17.06.2026

CORAM

THE HONOURABLE MR.JUSTICE P.VADAMALAI

S.A(MD)No.38 of 2012

and

C.M.P(MD)No.3386 of 2016

1.S.Manikanda Moorthy,

S/o.Late Sankaranarayanan,

Nallammanaickenpatti Village,

Avalsooranpatti Post,

Tirumangalam Taluk,

Madurai District.

2.S.Saroja Ammal,

W/o.Late Sankaranarayanan,

Nallammanaickenpatti Village,

Avalsooranpatti Post,

Tirumangalam Taluk,

Madurai District.

3.S.Renuka Devi,

D/o.Late Sankaranarayanan,

Nallammanaickenpatti Village,

Avalsooranpatti Post,

Tirumangalam Taluk,

Madurai District. ...Appellants/Respondents/Defendants

Vs.

S.Krishna Moorthy,

S/o.Late Sankaranarayanan,

Nallammanaickenpatti Village,

Avalsooranpatti Post,

Tirumangalam Taluk,

Madurai District. ...Respondent/Appellant/Plaintiff

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S.A(MD)No.38 of 2012

Prayer: This Second Appeal filed under Section 100 of the Civil Procedure

Code, against the reversing judgment and decree passed in A.S.No.196 of 2010

on the file of the Camp Subordinate Judge, Tirumangalam, dated 14.09.2011

filed against the judgment and decree passed in O.S.No.299 of 2007 on the file

of the District Munsif Court, Tirumangalam, dated 30.08.2010.

For Appellants: Mr.V.Chandrasekar

For Respondent : Mr.Lakshmi Gopinathan

JUDGMENT

This Second Appeal is preferred against the judgment and decree dated

14.09.2011 passed in A.S.No.196 of 2010 on the file of the Camp Subordinate

Court, Tirumangalam, reversing the judgment and decree, dated 30.08.2010

made in O.S.No.299 of 2007 on the file of the District Munsif Court,

Tirumangalam.

2.The appellants are the defendants in O.S.No.299 of 2007 on the file of

the District Munsif Court, Tirumangalam. The respondent is the plaintiff in that

suit.

3.For the sake of convenience, the parties are referred to as plaintiff and

defendants as arrayed in O.S.No.299 of 2007 on the file of the District Munsif

Court, Tirumangalam.

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S.A(MD)No.38 of 2012

4.Plaintiff’s case:

The suit properties are ancestral properties of one Sankaranarayanan

Reddiar. His wife is Saroja Ammal, the 2nd defendant herein. The plaintiff and

the 1st defendant are brothers and the 3rd defendant is his sister.

Sankaranarayanan Reddiar died on 12.08.2006. The parties are equally entitled

to the suit properties as per the Hindu Succession Act. The 1

st

defendant has

made the father to execute two settlement deeds and a Will on 08.08.2006 and

on the next day, the father was admitted in hospital and died on 12.08.2006.

Since the plaintiff was working in the military, he came to know later that the

aforesaid documents were forged ones. Hence, the plaintiff filed the suit for

partition and declaration that the documents are forged ones and for a

permanent injunction.

5.Case of the 1

st

defendant:-

The relationship between the parties is admitted. Their father

Sankaranarayanan Reddiar purchased the suit properties. Since the suit

properties are self acquired properties of the father, he had the absolute right to

execute any deed in respect of the suit properties. The settlement deed and Will

executed by Sankaranarayanan Reddiar are a valid one. After marriage, the

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S.A(MD)No.38 of 2012

plaintiff has not taken care of his parents. As per deeds executed by the father,

the 1st defendant is the owner of the suit properties. So, the suit has to be

dismissed.

6. Case of the defendants 2 and 3:

The suit properties are self acquired properties of Sankaranarayanan

Reddiar and he has every right to dispose of his properties. The plaintiff, being

the elder son, has not taken care of the parents and only the 1st defendant has

taken care of them. Hence, out of love and affection, Sankaranarayanan

Reddiar bequeathed the suit properties in favour of the 1st defendant.

At the time of execution of the deeds, Sankaranarayanan Reddiar was hale and

healthy and voluntarily executed those deeds out of his own Will. The plaintiff

has no right to claim any right over the suit properties. So, the suit is liable to

be dismissed.

7.Before the trial Court the following issues were framed:

(1)Whether it is true that the suit properties are

ancestral properties of late. Sankaranarayanan

Reddiar?

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S.A(MD)No.38 of 2012

(2)Whether late. Sankaranarayanan Reddiar

could dispose of items 1, 2, 3 and 4 as per his

wishes?

(3)Whether the plaintiff is entitled to the relief

of declaration as prayed for?

(4)Whether the plaintiff is entitled to the relief

of a preliminary decree for partition as prayed for?

(5)Whether the plaintiff is entitled to the relief

of a permanent injunction as prayed for?

(6)To what other relief?

8.During the trial, the plaintiff was examined as P.W.1 and the brothers

of Sankaranarayanan Reddiar were examined as P.W.2 and P.W.3. Ex.A.1 to

Ex.A.5 were marked. The 1st defendant was examined as D.W.1 and the

attestors of the settlement deed and Will were examined as D.W.2 to D.W.4.

Ex.B.1 to Ex.B.31 were marked. Ex.X.1 to Ex.X.3 were also marked.

9.After hearing both sides, the learned District Munsif, Tirumangalam,

held that the suit properties are self acquired properties of late

Sankaranarayanan Reddiar and he has every right to execute the deeds.

The 1st defendant proved that the settlement deed and Will (Ex.A.2 to Ex.A.4)

executed by Sankaranarayanan Reddiar are true and valid and that the

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S.A(MD)No.38 of 2012

1st defendant is the owner of the suit properties, thereby dismissed the suit by

passing judgment, dated 30.08.2010.

10.Aggrieved by the judgment and decree, the plaintiff has preferred

the Civil Appeal in A.S.No.196 of 2010 before the Sub Court, Tirumangalam.

Along with the first appeal, the plaintiff has also filed a petition in I.A.No.215

of 2011 to receive additional documents. After hearing both sides, the first

Appellate Court has held that the suit properties are not self acquired properties

of Sankaranarayanan Reddiar, thereby he has no right to execute any deed as

per his wish and also held that the settlement deed and Will (Ex.A.2 to Ex.A.4)

are not genuine one and hence, the plaintiff is entitled to share as sought in the

plaint. Accordingly, the first Appellate Court has set aside the finding of the

trial Court and passed judgment and a preliminary decree, dated 14.09.2011, in

favour of the plaintiff, entitling him to a 5/16 share in the suit properties.

11.Challenging the judgment and preliminary decree of the first

Appellate Court, the defendants have preferred this Second Appeal and the

same has been admitted on the following substantial questions of law:-

''i) Whether the first Appellate Court

committed a grave error in holding that the

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S.A(MD)No.38 of 2012

properties allotted in a partition are ancestral in

nature after the advent of the Hindu Succession

Act, 1956?

ii) Whether the judgment and decree of

the first Appellate Court can be sustained on the

basis of Ex.A.5, which is an unregistered

partition deed which could not be pressed into

service for any purpose in view of the statutory

bar under section 17 of the Registration Act?

iii) Whether the first Appellate Court is

right in coming to the conclusion that the

deceased Sankaranarayanan Reddiar has no

right to execute a Will in respect of the ancestral

properties?

12. Head both sides and perused the records in this Second Appeal.

13.The learned counsel for the appellants/defendants has argued that the

first item of suit property was purchased by Sankaranarayanan Reddiar on

16.08.1960 and he bequeathed the same in favour of 1st defendant under

registered document No.24/2006. The 2nd item comprises three items, which

were purchased by Sankaranarayanan Reddiar on 06.07.2000, so they cannot

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S.A(MD)No.38 of 2012

be construed as ancestral properties. The said Sankaranarayanan Reddiar

executed a registered settlement deed, dated 08.08.2006, in favour of the 1st

defendant. The said Sankaranarayanan Reddiar has also purchased item

No.3 and executed a settlement deed in favour of the 1st defendant. There is

no averment in respect of the 4th item of suit property and in respect of the

same, Sankaranarayanan Reddiar executed an unregistered Will in favour of

the 1st defendant. Therefore, the plaintiff's plea that the suit properties are

ancestral properties is a false one. Moreover, the plaintiff has not disputed

those documents and has not sought any relief for cancellation of settlement

deeds and the will executed by Sankaranarayanan Reddiar. Therefore, the

plaintiff is not entitled to any right in the suit properties. The plaintiff has

produced only an unregistered partition deed, which was not pleaded by the

plaintiff and hence, without pleading, that document cannot be taken into

consideration. The trial Court has correctly appreciated the evidence and

rightly dismissed the suit. But the first Appellate Court erred in reversing the

finding of the trial Court and hence, the second appeal may be allowed.

14.Per contra, the learned counsel for the respondent/plaintiff

vehemently contended that the unregistered partition deed marked as Ex.A.5

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S.A(MD)No.38 of 2012

was marked upon payment of stamp duty penalty as per the order of this Court

in C.R.P.Nos.758 and 759 of 2009. The brothers of Sankaranarayanan Reddiar,

who were parties to Ex.A.5, were examined as P.W.2 and P.W.3. The suit

properties were properly mentioned in Ex.A.5 partition deed. The defendant

has not challenged the order of this Court regarding the payment of the stamp

duty penalty. Hence, Ex.A.5 has to be taken into consideration for the

adjudication of the case. The brothers of Sankaranarayanan Reddiar/P.W.2 and

P.W.3 have categorically deposed about the partition deed and allotment of

properties to Sankaranarayanan Reddiar. Therefore, the suit properties are not

self acquired properties of Sankaranarayanan Reddiar and they are ancestral

properties. As per evidence, the Sankaranarayanan Reddiar went to work only

in the year 1968, whereas the item Nos.1 and 3 of the suit properties were

purchased in the name of Sankaranarayanan Reddiar in 1959 and 1960 and also

as per the evidence of D.W.1, the age of Sankaranarayanan Reddiar was

13 years in 1959 and 1960. Therefore, the properties purchased in his name

while Sankaranarayanan Reddiar was a minor were out of the joint family

income. Therefore, the contention of the defendant that the suit properties are

self acquired properties of Sankaranarayanan Reddiar is not correct.

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S.A(MD)No.38 of 2012

15.The learned counsel for the respondent/plaintiff has further argued

that the plaintiff has specifically raised an objection about the health condition

of Sankaranarayanan Reddiar at the time of execution of the alleged settlement

deed and Will in favour of the 1st defendant. The plaintiff has clearly proved

that Sankaranarayanan Reddiar was admitted in hospital on 09.08.2006, one

day prior to that, i.e.. on 08.08.2006, those deeds were executed.

Moreover, the said Sankaranarayanan Reddiar was employed in the Railways,

so he could sign his name. The deeds in question have borne the thumb

impression of Sankaranarayanan Reddiar, except for the first page which

showed a signature. Therefore, the alleged deeds create suspicion. The plaintiff

clearly pleaded that the said deeds are forged ones. The 1st defendant has not

proved that Sankaranarayanan Reddiar was hale and healthy to execute any

deed by producing any medical evidence. The plaintiff has sought his 5/16

share only. The trial Court has not appreciated the above aspects based on

evidence, but simply dismissed the suit. But, the first Appellate Court has

properly appreciated the evidence and passed a preliminary decree in favour of

the plaintiff, granting 5/16 share in the suit properties. The first Appellate

Court correctly concluded the suit, and there is no infirmity in its decision and

there is no need for interference. Therefore, this second appeal may be

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S.A(MD)No.38 of 2012

dismissed. In support of his argument, the learned counsel for the plaintiff has

relied on the following judgments:

1) 2003 (7) Supreme 105 in the case of

Krishna Mohan Kul @ Nani Charan Kul and

Anr. /v/ Pratima Maity and Ors.

2) Judgment of the Hon’ble Supreme

Court in the case of Bhagwati Prasad /v/ Shri

Chandra Maul in Civil Appeal Nos.964 and 965

of 1964.

16.On hearing both sides and on perusal of the records, it is clear that the

plaintiff, 1st defendant and 3rd defendant are the sons and daughter of one

Late.Sankaranarayanan Reddiar through the 2nd defendant. There is no dispute

in it. The suit properties consist of four items. The plaintiff’s case is that the

suit properties are ancestral properties of Sankaranarayanan Reddiar, whereas

the defendants’ case is that the suit properties are self acquired properties of

Sankaranarayanan Reddiar. On perusal of Ex.A.5, the suit properties,

i.e., items 1 to 4, were clearly mentioned in Ex.A.5, which is an unregistered

partition deed that took place in the year 1974. The brothers of

Sankaranarayanan Reddiar, namely Baluchamy Reddiar and Kandhasamy

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S.A(MD)No.38 of 2012

Reddiar, were examined as P.W.2 and P.W.3. The defendants filed document

Ex.B.1 and Ex.B.5 to show that Sankaranarayanan Reddiar purchased the suit

properties. It is evident that at the time of those deeds, the said

Sankaranarayanan Reddiar was aged only 13 years old, and the defendant has

not let in any evidence to show the income of Sankaranarayanan Reddiar at the

time of those purchases. Therefore, the case of the plaintiff that the

1st schedule and 3rd schedule properties were purchased by Sankaranarayanan

Reddiar at his age of 13, out of the joint family income, is an accepted one.

The 4th schedule property was allotted to Sankaranarayanan Reddiar in 1974.

The 3rd schedule property was not shown in the partition deed. As per the

Hindu Succession Act 1956 (as amended in 2005), when a son and daughter

are born, the father has no right to execute any will in respect of the entire

ancestral property, since the son and daughter acquire an equal interest in the

ancestral property by birth. This legal aspect has been confirmed by the

Hon’ble Supreme Court in Vineeta Sharma /vs/ Rakesh Sharma case

reported in 2020. Therefore, there is an embargo on the father of the plaintiff

and defendants 1 and 3 to execute any deed or Will as he had no exclusive right

over the ancestral property in its entirety.

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S.A(MD)No.38 of 2012

17.Further, it is argued by the plaintiff that the father was not hale and

healthy to execute any deed on 08.08.2006, as he was admitted in hospital on

09.08.2006. It was proved by the plaintiff during the appeal under Ex.A.6.

This was not objected by the defendants' side. The said Sankaranarayanan

Reddiar died on 12.08.2006, which is not a denied fact. Moreover, as rightly

observed by the first Appellate Court, on perusal of the settlement deed and

Will, it is clear that the said Sankaranarayanan Reddiar put his thumb

impression. The defendants have not disputed the fact that the said

Sankaranarayanan Reddiar was a railway employee and he could put his

signature. On perusal of deeds in question, the said Sankaranarayanan Reddiar

put his signature only on the 1st page, and from next pages his LTI was

mentioned and hence, the first Appellate Court has rightly observed that the

said Sankaranarayanan Reddiar was not physically fit and in a sound disposing

state of mind and when a person is unable to complete his signature it can be

normally presumed that he had fainted before completing his signature.

The alleged attestors of said deeds, namely D.W.2 and D.W.3, could not

explain as to why the thumb impression of the said Sankaranarayanan Reddiar

was obtained in other pages of the deeds in question. Therefore, the suspicious

circumstances create a cloud upon those documents.

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S.A(MD)No.38 of 2012

18.It is also pertinent to note that the plaintiff was working in the Indian

Military, which is not disputed by the defendants' side. Hence, the contention

of the defendants that the plaintiff has not taken care of his father,

Sankaranarayanan Reddiar, has no bearing. The argument of the defendants

that the plaintiff has not sought any relief for the cancellation of deeds need not

arise in the facts and circumstances of this case. In the plaint itself, the plaintiff

pleaded that the alleged settlement deeds and Will Ex.A.2 to Ex.A.4 are forged

one and hence, it is the duty of the defendant to prove the same as genuine.

In a suit for partition, all parties are deemed to be plaintiffs. Hence, the

defendants have to prove the settlement deed and Will Ex.A.2 to Ex.A.4, in this

case, the defendants miserably failed to prove the same as genuine.

The citations relied on by the respondent/plaintiff are applicable to the facts of

this case.

19.Therefore, on a thorough consideration of both oral and documentary

evidence adduced by both sides, it is clear that the suit properties are not self

acquired properties of Sankaranarayanan Reddiar and they are his ancestral

properties as pleaded by the plaintiff. The first Appellate Court has correctly

appreciated the evidence of both sides and rightly passed a preliminary decree

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S.A(MD)No.38 of 2012

in favour of the plaintiff. This Court concludes that the finding of the first

Appellate Court is correct and the same need not be interfered with by way of

this second appeal. Therefore, the questions of law are answered against the

appellants/defendants. Thus, this second appeal fails.

20.In the result, the Second Appeal is dismissed. The judgment and

decree, dated 14.09.2011 passed in A.S.No.196 of 2010 on the file of the Camp

Subordinate Court, Tirumangalam, reversing the judgment and decree, dated

30.08.2010 made in O.S.No.299 of 2007 on the file of the District Munsif

Court, Tirumangalam are confirmed. No costs. Consequently, the connected

Civil Miscellaneous Petition is closed.

17.06.2026

NCC : Yes / No

Internet : Yes / No

Index : Yes / No

VSD

To

1.The Camp Subordinate Court,

Tirumangalam.

2.The District Munsif Court,

Tirumangalam.

3.The Record Keeper,

Vernacular Records,

Madurai Bench of Madras High Court,

Madurai.

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S.A(MD)No.38 of 2012

P.VADAMALAI, J.

VSD

Pre-Delivery Judgment made in

S.A(MD)No.38 of 2012

and

C.M.P(MD)No.3386 of 2016

17.06.2026

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