Madras High Court holds ancestral character of property, validates grandfather's Will to extent of one‑third and apportions shares

A bench of Justice N. Sathish Kumar and Justice R. Sakthivel heard an appeal by defendants 4 and 5 challenging the I Additional District Judge, Coimbatore's judgment in O.S.No.164 of 2015 that had granted a preliminary decree for partition, allotted half the property to the plaintiff and half to defendants 2 and 3, set aside a sale deed dated 22.02.2007 and rejected a registered Will. The appeal raised issues on whether the first schedule property was ancestral, whether subsequent purchases arose from joint family funds, the validity of the Will dated 22.02.2007 (Ex.B12) and the validity of the sale deed in favour of the 5th defendant (Ex.A9).

The High Court allowed the appeal in part, set aside the trial court decree and reconfigured the partition and the validity of testamentary and alienation documents. The court held that the first item of the suit property became ancestral in the hands of A.S. Muthusamy Gounder on his inheritance from Sellappa Gounder and that Items 2 to 4 were purchased out of the joint family nucleus unless disproved by clear evidence of separate funds. The Court, in its reasoning, observed: "Applying the above principle, admittedly, when Muthusamy Gounder inherited the property on the death of his father Sellappa Gounder and remained in its possession as his individual property, the moment son Selvaraj was born, it became ancestral in the hands of Muthusamy Gounder. Therefore, we are of the view that the 1st item of the suit properties is the ancestral property in the hands of Muthusamy Gounder." The Court further held that the registered Will (Ex.B12) executed in favour of the 4th defendant was proved by attesting witnesses and was valid to the extent of the testator's one‑third coparcenary share, and that the sale deed (Ex.A9) executed on the same day was valid to the extent of that one‑third share. The judgment recorded: "In the absence of any evidence to show that there was a definite and separate income... it has to be presumed that the properties in Item Nos.2 to 4 were purchased out of the joint family nucleus."

Background The dispute arose after the death of A.S. Muthusamy Gounder in December 2009, when revenue records showed mutation in the name of the 4th defendant and the plaintiff claimed one‑third share as a coparcener. The plaintiff contended that Item No.1 was allotted to Sellappa Gounder by a 1919 partition deed and that Items 2–4 were purchased by Muthusamy Gounder out of joint family funds; she sought partition, injunction and declaration that the 2007 sale deed was void as to her share. The defendants, including the 4th and 5th, relied on a registered Will dated 22.02.2007 and a sale deed of the same date, and pleaded that the 5th defendant was the lawful second wife of Selvaraj and that the 4th defendant was his legitimate son.

The trial court had rejected the Will and granted partition by allotting one half to the plaintiff and one half to defendants 2 and 3, and had set aside the sale deed in favour of the 5th defendant. On appeal the High Court reviewed genealogy, the 1919 partition deed (Ex.A1), evidence of cultivation and revenue records, and the testimony of attesting witnesses for the Will. Applying settled principles of Hindu succession and coparcenary law, the court held that property inherited before the Hindu Succession Act, 1956, became ancestral in the hands of the heir and that where a substantial joint family nucleus was proved, the kartha must prove separate funds for contested purchases. The Court found the Will to be properly executed and attested, but observed that a coparcener could will only his share; accordingly the Will operated over the testator's one‑third share. The High Court allowed the appeal, set aside the trial decree and directed a preliminary decree of partition allotting shares as follows: plaintiff 17/48, 2nd defendant 2/48, 3rd defendant 11/48 and 4th defendant 18/48; it held the sale deed valid to the extent of the testator's one‑third share. Both parties were directed to bear their own costs; impleading petitions and connected misc. petitions were disposed as recorded.

Case Details: Case No.: A.S.No.463 of 2024 Case Title: S. Santhosh Kumar and Indirani @ Indira Gandhi ... Appellants Vs. M. Sivabackiam, Mylathal (deceased), Govindammal and Rubadevi ... Respondents Appearances: For the Petitioner(s): Mr. Sharath Chandran for Mr. B. Gopalakrishnan For the Respondent(s): Mr. R. Susendhiran; Mr. S. Mukunth, Senior Counsel for Mr. K. Sudhakar; Mrs. M. Pavithra (for proposed respondents R4 to R6 in C.M.P.No.16921 of 2025)