JUDGMENT : R. Tharani, J. 1. Heard the learned counsel on both the sides. 2. This appeal is filed against the Judgment and Decree passed in O.S. No. 32 of 2011 dated 12.07.2013 on the file of the learned Principal District Judge, Theni. 3. The appellant herein is the defendant and the respondent herein is the plaintiff in the suit. The respondent filed a suit in O.S. No. 32 of 2011 seeking a prayer of partition and for separate possession and for permanent injunction not to alienate the property. The learned Principal District Judge decreed the suit. Against which, the appellant has come forward with this appeal. 4. The case of the plaintiff is that the plaintiff is the son of the defendant and the suit properties belongs to the grandfather of the plaintiff by name Muthu Thevar. After the death of Muthu Thevar, the plaintiff and the defendant were enjoying the property as joint family property and out of the income from the property 1 to 4, the suit property item No. 5 was purchased in the name of the defendant and that all the properties were enjoyed by the defendant and the plaintiff as joint family properties. When the plaintiff seek for a partition in the year 2011, the defendant tried to alienate the property and to create encumbrance over the property. The plaintiff issued a notice dated 12.10.2011 and the same was received by the defendant on 20.10.2011. The suit properties are to be divided into two portions and one such portion is to be allotted to the plaintiff. 5. The case of the defendant is that the there is no Hindu Undivided family. The plaintiff and the defendant were filing their income tax returns separately. The plaintiff cannot claim any such right as a member of a Hindu undivided family. The plaintiff is not a legal heir under Section 8 of Hindu Succession Act 1956, when the defendant is alive. After the death of the father of the defendant in the year 1999, the defendant took possession of the properties. The defendant and his sister are the legal heirs. With the consent of his sister, the defendant transferred the revenue records in his name. The defendant was 20 years old at the time of death of his grandfather. 6. After the death of the father of the defendant in the year 1999, the defendant took possession of the properties. The defendant and his sister are the legal heirs. With the consent of his sister, the defendant transferred the revenue records in his name. The defendant was 20 years old at the time of death of his grandfather. 6. The property in Survey No. 199/1 was purchased by the defendant on 22.05.1980 out of his own income and the same was reported as self - acquired property in the official statement of the defendant. Even before the death of his father, the defendant was filing separate income tax returns and the copy of the IT return filed by the defendant for the assessment year 1992-1993 is enclosed in the suit as a document. It is mentioned that the property in Survey No. 199/1 was purchased from Hindu Undivided Family income. The grandson is not having any right in the property of the grandfather when the father is alive. 7. The plaintiff in his reply statement has stated that the plaintiff's grandfather died in the year 1999. The suit properties are the ancestral properties of Muthu Thevar. The plaintiff is having right to obtain the property. Out of income of the joint family property, the defendant purchased the 5th item of the suit property. The plaintiff and the defendant used to share the income obtained from the cultivation of lands. 8. On the basis of the pleadings, the trial Court framed the following issues: OTHER LANGUAGE 9. One witness was examined and 10 documents were marked as Exs. A1 to A10 on the side of the plaintiff and one witness was examined and 10 documents were marked as Exs. B1 to B10 on the side of the defendant. After considering the oral and documentary evidence, the trial Court decreed the suit. Against which, the appellant herein has filed the present appeal suit before this Court. 10. In the grounds of appeal, it is stated that the lower Court ought to have considered Section 8 of the Hindu Succession (Amendment) Act 2005 and dismissed the claim of plaintiff. As per Section 8, the property of appellant's father who died interstate shall devolve only on the appellant. The plaintiff who is the grandson does not have any right over the property. As per Section 8, the property of appellant's father who died interstate shall devolve only on the appellant. The plaintiff who is the grandson does not have any right over the property. The lower Court failed to see that the plaintiff never come under the purview of class I legal heir as per the schedule under Section 8 of Hindu Succession (Amendment) Act 2005. The lower Court failed to see that no hindu undivided family concept exists between the plaintiff and the defendant and even as per the Hindu Succession Act 1956, the plaintiff is not entitled to have any share in the grandfather's property. It is stated that the appellant is only entitled in his father's property. The lower Court ought to have seen that Muthu Thevar who is the father of the appellant and the grandfather of the plaintiff had one son and one daughter. Admittedly no partition took place between the son and the daughter. The class-I legal heirs of Muthu Thevar alone were entitled to his estate. 11. The questions to be decided in this appeal are as follows:- (i) whether the respondent is entitled to half share in item Nos. 1 to 4? (ii) whether the respondent is entitled to half share in item No. 5 of the schedule property? (iii) Whether the suit is bad for non-joinder of necessary parties? (iv) whether the appeal is to be allowed? 12. The case of the plaintiff is that all the suit properties belong to Hindu undivided family consisting of the plaintiff and the defendant. The plaintiff is the son of the defendant and the defendant admitted that item Nos. 2 and 3 were ancestral properties which belong to the family from the period of Kattaiyan, who is the grand father of the defendant and the great-grandfather of the plaintiff. 13. On the side of the defendant, it is stated that item No. 1 of the property was purchased by the grand father of the plaintiff and it was the self acquired property of the grandfather and the plaintiff is not entitled to have any share in item No. 1 of the properties. 14. The case of the plaintiff is that the grandfather is not having any source of income and he purchased the first and fourth items of the properties from and out of the income derived from the properties in item Nos. 2 and 3. 14. The case of the plaintiff is that the grandfather is not having any source of income and he purchased the first and fourth items of the properties from and out of the income derived from the properties in item Nos. 2 and 3. The revenue records for the suit properties 1, 3 and 5 were marked as Ex. A1. The plaintiff sent a legal notice on 12.10.2011, copy of which was marked as Ex. A2. Acknowledgement card for receipt of Ex. A2 was marked as Ex. A3. Reply notice sent by the defendant to the plaintiff was marked as Ex. A4. Plaintiff sent a notice regarding the corrections in I.A. No. 78 of 2011 and the same was marked as Ex. A5. The acknowledgement card was marked as Ex. A6. Plaintiff sent a re-joinder notice to the defendant, which was marked as Ex. A7. Acknowledgement card was marked as Ex. A8. House tax receipt was marked as Ex. A9 and agreement was marked as Ex. A10. 15. On the side of the defendant, the legal heirship certificate for Muthuthevar issued by the Tahsildar, Periyakulam, was marked as Ex. B1. Defendant's sister Chellammal gave a letter consenting the defendant to transfer the patta in his name and the same was marked as Ex. B2. Patta regarding suit item Nos. 1, 2, 3 and 5 were marked as Ex. B3 and chitta regarding suit schedule item Nos. 1, 2, 3 and 5 were marked as Ex. B4. Kist receipt was marked as Ex. B5, tax receipt was marked as Ex. B6. Ration Card was marked as Ex. B7. Income tax returns filed by the defendant dated 11.08.1993 was marked as Ex. B8. Income tax return dated 06.07.2005 was marked as Ex. D9. Sale deed regarding the fifth item of the schedule property was marked as Ex. B10. 16. On the side of the appellant, it is stated that item No. 4 of the property was purchased by the grandfather of the plaintiff by name Muthuthevar and he constructed a house in the year 1966 and the sister of the defendant is residing in that property. B10. 16. On the side of the appellant, it is stated that item No. 4 of the property was purchased by the grandfather of the plaintiff by name Muthuthevar and he constructed a house in the year 1966 and the sister of the defendant is residing in that property. The case of the respondent/plaintiff is that the properly belongs to Hindu undivided family and that both the plaintiff and the defendant were having equal right over the property and suit item No. 4 of the property was purchased by Muthuthevar from the income derived from the properties in item Nos. 2 and 3. It is further stated that the plaintiff has right by birth as a coparcener in the Hindu Undivided Family. 17. On the side of the defendant, it is stated that item Nos. 1 and 4 were purchased by the grandfather of the plaintiff in his individual capacity and the defendant and his sister are the legal heirs of Muthuthevar and therefore, each one of them is having half share in the property and the maximum share for the plaintiff will be only 1/4th share in the property. 18. On the side of the plaintiff, it is stated that the sister of the defendant namely Chellammal is estoppel from claiming any right over the property as she has given a letter stating that she has no objection in transferring the patta in the name of the defendant. The patta is in the name of the defendant and no objection letter given by the sister was marked as Ex. B2. 19. On the side of the plaintiff, it is stated that non-joinder of necessary party is not an issue raised in the written statement and the defendant cannot raise this point at the stage of appeal. 20. It is seen from the records that item Nos. 2 and 3 are the ancestral properties that belong to one Kattaiyan, who is the great grandfather of the plaintiff. Item Nos. 1 and 4 were stated to have been purchased by Muthuthevar, grandfather of the plaintiff. The property in item No. 5 is stated to have been purchased in the name of the father of the plaintiff/defendant. The plaintiff claimed that the property in item Nos. 1, 4 and 5 were purchased from the income derived from item Nos. 2 and 3. The property in item No. 5 is stated to have been purchased in the name of the father of the plaintiff/defendant. The plaintiff claimed that the property in item Nos. 1, 4 and 5 were purchased from the income derived from item Nos. 2 and 3. The claim of the defendant is that property in item Nos. 1 and 4 are the individual property of Muthuthevar and item No. 5 is an individual property of the defendant. 21. On the side of the defendant, it is stated that item No. 5 of the property belongs to the defendant and that he purchased the property out of his salary and that he was working in Indian Bank and the defendant had mentioned the same in the income tax returns Exs. B8 and B9. 22. On the side of the plaintiff, it was admitted that the defendant was working in Indian Bank and he was getting a monthly salary. But, it is stated that the defendant purchased so many other properties and he had apartments in Madurai and he had Fixed Deposits in the Bank and he has not purchased the suit property from and out of the salary derived from the Indian Bank. 23. Item No. 4 is a house, wherein the sister of the defendant Chellammal was stated to have been residing. The ration card was marked as Ex. B7. 24. The defendant has stated in his written statement that he having a sister, who is the legal heir of his father. Ex. B7 reveals that the sister of the defendant is residing in item No. 4 of the suit property. No objection letter said to have been written by Chellammal, was marked as Ex. B2. The defendant has deposed that his sister is enjoying the suit properties, as the defendant is residing in Madurai and not in the village. In Ex. B2, sister of the defendant did not execute a release deed or a relinquishment deed. The trial Court did not frame any issue as to the question of estoppel against Chellammal on the basis of Ex. B2. The averment in Ex. B2 is that Chellammal is not having objection in transferring the patta in the name of her brother and there is no averments as to any of relinquishment of her share in the properties. 25. B2. The averment in Ex. B2 is that Chellammal is not having objection in transferring the patta in the name of her brother and there is no averments as to any of relinquishment of her share in the properties. 25. A perusal of the written statement clearly reveals that the defendant has mentioned that he is having a sister, who is one of the legal heir of the Muthuthevar and he has admitted in his evidence that Chellammal is enjoying the fourth item of the property. The defendant did not raise a plea of non-joinder of necessary party. In a partition suit all the legal heirs are to be impleaded. As one of the legal representatives of Muthuthevar, is not impleaded this suit is bad for non-joinder of necessary party. 26. In the above circumstances, this Court deems it fit to set aside the judgment passed by the trial Court and to remand the matter back to the trial Court for impleading the sister of the defendant as a party to the suit. After impleading the sister of the defendant and after giving necessary opportunities for all the parties, the trial Court has to decide the matter afresh. The trial Court is directed to dispose of the case within a period of three months from the date of receipt of a copy of this judgment. 27. With the above observations, this Appeal Suit is disposed of and the judgment and decree passed by the trial Court is set aside and No costs.