JUDGMENT : This Second Appeal has been admitted on the following substantial questions of law: "(i). Whether the item No.1 of the suit property have trapping of coparcener Property, if so, whether Sections 6 or 8 of the Hindu Succession Act will apply, regarding devolution of the property ? and (ii). Whether the Lower Appellate Court was right in holding Item No.2 of the Suit property blending with the hotch pot of the Item No.1 of the property? " 2. The appeal filed by defendants 1 and 2 in the suit O.S.No.67 of 2006 on the file of the Principal District Munsif Court, Erode has given rise to these questions. In order to appreciate the point in issue it is necessary to allude briefly to the facts giving rise to the suit. 3. The 1st respondent/plaintiff claiming to be the son of the 2nd defendant out of his wedlock with one Chitra @ Tamilselvi had filed the above suit for partition of his 1/6th share in the suit properties. The plaintiff has come to Court stating that the suit 1st Item of property was purchased by his paternal great grand father Vembanna Gounder and after his demise intestate the property had devolved on his son the 1st defendant i.e., the paternal grand father of the plaintiff. The 2nd defendant is the father of the plaintiff and the 3rd defendant his paternal aunt. He would further submit that from and out of the income derived from the 1st Item of property the 1st defendant had purchased the 2nd Item of property in his name under a sale deed dated 03.09.1985. 4. It is also his further case that he and his mother were deserted by the 2nd defendant who had also initiated proceedings for dissolving the marriage between himself and the plaintiff's mother, Chitra @ Tamilselvi. Not stopping with not providing any maintenance to him and his mother the defendants were trying to deal with the suit property by creating encumbrances on it so as to remove it away from the reach of the plaintiff and hence the suit. 5. Not stopping with not providing any maintenance to him and his mother the defendants were trying to deal with the suit property by creating encumbrances on it so as to remove it away from the reach of the plaintiff and hence the suit. 5. The defense to this suit taken in the written statement jointly filed by defendants 1 and 2 are as follows: (i) The plaintiff is not the son of the 2nd defendant as the plaintiff's mother had left her matrimonial home within 3 months of the marriage and there was no cohabitation between the 2nd defendant and the plaintiff's mother. (ii) The property viz; the larger extent of the 1st Item of property measuring 6.50 acres was purchased by Vembanna Gounder and his brother Chinnasamy Gounder jointly. The brothers orally partitioned these properties with each being entitled to an extent of 3.25 acres. Thereafter, on the death of Vembanna Gounder this extent devolved on the 1st defendant and his brother Ramasamy who had also orally partitioned the properties with the 1st defendant being entitled to 1.62 1/2 acres of land described as Item I of the suit schedule. That the 1st defendant was doing coconut business and from out of this income the 2nd Item of property was purchased and that as regards Item II only the 1st defendant had any right or interest to the same. However, in paragraph no.3 of the written statement the defendants have described Item I as the absolute property of Vembanna Gounder and have denied that Item II was purchased out of "the income from the ancestral properties i.e., Item I of the suit property". (iii) The 2nd defendant has executed a registered release deed dated 10.01.2006 in favour of the 1st defendant as consideration for the loan that he had borrowed from the 1st defendant. Therefore there was no property available for partition. They therefore sought to have the suit dismissed. 6. The learned Principal District Munsif had framed three issues and an additional Issue which were: "(i) Whether the plaintiff is entitled to a preliminary decree? (ii)Whether the plaintiff is entitled to a decree for injunction till the partition is effected? (iii)To what other relief" Additional Issue: "Whether it is true that the plaintiff is not the legal heir of the 2nd defendant?" 7. (ii)Whether the plaintiff is entitled to a decree for injunction till the partition is effected? (iii)To what other relief" Additional Issue: "Whether it is true that the plaintiff is not the legal heir of the 2nd defendant?" 7. The plaintiff's mother had adduced evidence on behalf of the minor plaintiff as P.W.1 and had marked Ex.A.1 to Ex.A.4. The defendants 1 and 2 had examined themselves as D.W.1 and D.W.2 respectively and marked Ex.B.1 to Ex.B.8 to substantiate their case. 8. The learned Principal District Munsif rendered a finding that the plaintiff was the son of the 2nd defendant. However, the suit was dismissed by holding that the plaintiff had not proved the ancestral status of Item I and consequently the 2nd Item of property was not purchased out of the ancestral nucleus. Further under Ex.B.3, the 2nd defendant had released his share in favour of the 1st defendant. 9. Aggrieved by this Judgment and Decree the plaintiff had filed A.S.No.57 of 2009 on the file of the Subordinate Court, Erode. The defendants have not challenged that portion of the Judgment which recognises the plaintiff as the son of the 2nd defendant. The learned Subordinate Judge overturned the finding of the Trial Court but relying upon the admission of the defendants that the 1st Item of the suit property was ancestral property. The learned Judge also took into account the fact that the 1st Item of property were fertile lands capable of earning a good income and also took note of the fact that the defendants have not proved the independent source of income for purchasing the 2nd Item of property. The learned Judge therefore held that the 2nd Item of the suit property was also an ancestral property as the income for the purchase came only from the ancestral property. Therefore since the plaintiff had acquired a right on birth the learned Judge held that he was entitled to a 1/2 share in his father's 1/3rd share. The learned Judge also felt that the release deed Ex.B.3 was a collusive document. It is challenging this reversing Judgment and Decree that the defendants 1 and 2 are before this Court. Pending the appeal the 1st defendant died intestate. 10. Submissions: 10.1. The learned Judge also felt that the release deed Ex.B.3 was a collusive document. It is challenging this reversing Judgment and Decree that the defendants 1 and 2 are before this Court. Pending the appeal the 1st defendant died intestate. 10. Submissions: 10.1. Mr.N.Manoharan canvassed the cause of the defendants by submitting that on the death of Vembanna Gounder the property in the hands of the 1st defendant partook the character of a separate property. Further the 2nd Item of property stands in the exclusive name of the 1st defendant purchased from out of his own earning. He would submit that till such time as the properties stood in the name of the 1st defendant neither the plaintiff nor defendants 2 and 3 could claim any right over it. He would further submit that there can be a no presumption on the existence of an ancestral nucleus and further even if the ancestral property is identified the plaintiff has to prove that there was surplus income from the ancestral property to purchase the other property. In support of this submission the learned counsel would rely on the following authorities: (i) 2004 (4) CTC 208 - R.Deivanai Amma (Died) and another Vs. G.Meenakshi Ammal and others. (ii) 2012 (7) MLJ 414 - S.Dakshina Vs. Chinnaponnu and others (iii) 2013 (1) MLJ 513 - G.Kumar Vs. Samuthiradevi and another. (iv) 2014 (2) MWN (Civil) 797 - G.Mohandas and others Vs. G.Shanmugasundaram and others. 10.2. His next argument is that the plaintiff was claiming a right only under the 2nd defendant who even prior to the filing of the suit had released his entire share in favour of the 1st defendant under Ex.B.3 - release deed. He would submit that this release has not been challenged by the plaintiff under Section 31 of the Specific Relief Act. In order to buttress this contention he has relied on the following Judgments: (i) 2013 (3) SCC 182 - Board of Trustees of Port of Kandla Vs. Hargovind Jasrah and another. (ii) AIR 2019 MAD 188 - K.Narayanasamy Vs. K.Thulasiram and others. 10.3. Mr.N.Manoharan would argue that the suit itself is premature as any right would accrue to the plaintiff only after demise of the 2nd defendant. He would contend that the lower Appellate Court has grossly erred in reversing the well considered Judgment and Decree of the Trial Court. (ii) AIR 2019 MAD 188 - K.Narayanasamy Vs. K.Thulasiram and others. 10.3. Mr.N.Manoharan would argue that the suit itself is premature as any right would accrue to the plaintiff only after demise of the 2nd defendant. He would contend that the lower Appellate Court has grossly erred in reversing the well considered Judgment and Decree of the Trial Court. He would therefore pray that the appeal be allowed and the Judgment and Decree of the Trial Court be restored. 10.4. Per contra, Mr.V.Ayyadurai, learned Senior Counsel appearing on behalf of the counsel for the plaintiff would at the outset submit that after the filing of this Second Appeal, since the 1st defendant has died intestate the succession has opened. He would submit that the 4th and 5th defendants cannot be impleaded as the legal representative of the 1st defendant when the 3rd defendant is alive. He would further submit that a reading of Ex.B.3 Release deed would clearly prove that the 1st Item of property is an ancestral property. Once the existence of the ancestral property is proved it assumes the character of a coparcenory property. He would submit that the defendants have admitted this in paragraph no.8 of their written statement. He would draw the attention of the Court to the finding of the Trial Court that the plaintiff had not produced any evidence to show that Vembanna Gounder had purchased the suit 1st Item of property with the funds from an ancestral property. The learned senior counsel would submit that the ancestral character of the properties is clearly evidenced by a mere perusal of Ex.B.3 release deed where the defendants have described the properties subject matter of the release deed as ancestral property. The properties subject matter of Ex.B.3 is the suit schedule Item I property. He would further submit that the lower Appellate Court being the final Court of fact has on the basis of the evidence, come to the conclusion that the 1st Item of the suit property is ancestral. The Appellate Court has also discussed in detail that the 1st Item of property is a very fertile property having irrigation facilities which is capable of yielding good income with which the 1st defendant has purchased the 2nd item. The Appellate Court has also discussed in detail that the 1st Item of property is a very fertile property having irrigation facilities which is capable of yielding good income with which the 1st defendant has purchased the 2nd item. In the absence of any evidence on the side of the defendants to prove source of income the only conclusion is that the 2nd item has been purchased from out of the income from the ancestral nucleus. 10.5. The learned senior counsel would further submit that on the death of the 1st defendant the Succession has opened and considering Section 6 and 8 of the Hindu Succession Act the right of the plaintiff which accrued to him on birth had become enforceable. In support of the above he would rely on the following Judgment. (i) 2009 (15) SCC 184 - M.Yogendra and others Vs. Leelamma N and others. (ii) 2013 (9) SCC 419 - Rohit Chauhan Vs. Surinder Singh and others. (iii) 2018 (7) SCC 646 - Shyam Narayan Prasad Vs. Krishna Prasad and others. (iv) 2017 (3) CTC 170 - M.Krishnamoorthy Vs. K.Pondeepankar (v) 2020 (1) MWN (Civil) 528 - Govindan and another Vs. Revathy and others. 11. Discussion: 11.1. The case of the plaintiff is that the 1st Item of the suit property is an ancestral property and that the 2nd Item was purchased from out of the income derived from the 1st Item of the property. With reference to Item I, the defendants have not categorically stated that the same is not an ancestral property. It is the 2nd Item of property which they very vehemently contend is the self acquired property of the 1st defendant. In fact the plea with reference to Item I is that it is the self acquired property of the plaintiff's great grand father Vembanna Gounder. However, Ex.B.3 release deed executed by the 2nd defendant in favour of the 1st defendant with regard to the suit 1st Item of property in very clear terms describes the property as ancestral. That apart pending this appeal the 1st defendant had died intestate, therefore, the plaintiff's right that had accrued to him on birth has become enforceable. The Hon'ble Supreme Court in the Judgment reported in 2018 (7) SCC 646 - Shyam Narayan Prasad Vs. Krishna Prasad and others had observed as follows in paragraph no.12: "12. That apart pending this appeal the 1st defendant had died intestate, therefore, the plaintiff's right that had accrued to him on birth has become enforceable. The Hon'ble Supreme Court in the Judgment reported in 2018 (7) SCC 646 - Shyam Narayan Prasad Vs. Krishna Prasad and others had observed as follows in paragraph no.12: "12. It is settled that the property inherited by a male Hindu from his father, father’s father or father’s father’s father is an ancestral property. The essential feature of ancestral property, according to Mitakshara Law, is that the sons, grandsons, and great grandsons of the person who inherits it, acquire an interest and the rights attached to such property at the moment of their birth. The share which a coparcener obtains on partition of ancestral property is ancestral property as regards his male issue. After partition, the property in the hands of the son will continue to be the ancestral property and the natural or adopted son of that son will take interest in it and is entitled to it by survivorship." 11.2. The learned Judges were considering whether the property allotted to the 2nd defendant therein under a partition deed would still retain the character of coparcenary property since the properties had been partitioned under a deed of partition between the father and his sons, which included the 2nd defendant. After considering the various Judgments the learned Judges held that the property allotted to the 2nd defendant retained the character of coparcenary property and the plaintiff therein being the sons and grandson have a right. This Judgment would apply on all fours to the instant case and therefore substantial question of law 1 is answered in favour of the plaintiff. 11.3. Coming to the 2nd substantial question of law the Lower Appellate Court has clearly discussed how the suit 1st Item of property is a fertile land having irrigation facilities. The learned Judge has also observed that the defendants had not given any evidence to show their source of income despite taking a specific defense that the 2nd Item of property was the self acquired property of the 1st defendant purchased out of his own earnings. The counsel for the defendants has raised a defense that in order to prove that the property purchased in the individual's name is purchased out of income from the ancestral property, the plaintiff has to show surplus income. The counsel for the defendants has raised a defense that in order to prove that the property purchased in the individual's name is purchased out of income from the ancestral property, the plaintiff has to show surplus income. The 1st Item of property is admittedly agricultural lands the defendants in their written statement would contend that the 1st defendant had earned considerably by selling coconuts. He has however not let in any evidence to show from where he procures the coconut for sale. Since the 1st Item is agricultural lands it can be safely presumed that the coconuts come from the 1st Item of property and therefore the 2nd Item is purchased with these funds. With the death of the 1st defendant and the fact that income from the ancestral properties had been used for the purchase of the 2nd Item of property the plaintiff is entitled to a share in the above property as well. 11.4. The counsel for the defendants had raised a defense that the plaintiff has not sought to cancel Ex.B.3 Release deed and without seeking for a declaration in respect of this document the suit for partition in respect of the 1st Item has to be dismissed. The defendants have themselves admitted that the suit 1st item of property is ancestral. The manner and the timing of the deed clearly shows that the defendants wanted to deprive the plaintiff of his right to the properties. From the year 2004, the mother of the minor has been demanding her son's share and after filing the petition for divorce the release deed came to be executed. The case of the defendants is that the release deed was executed in consideration of the loan advanced by the 1st defendant in favour of the 2nd defendant. However, there is no evidence to substantiate the loan and no details of this loan is available. The deed in question is clearly a sham and collusive one. The deed has been created fraudulently. The conduct of the defendants to some how deprive the plaintiff of his legal due is evident from the plea taken by the defendants that the plaintiff is not the son of the 2nd defendant which was found against them. The creation of the release deed is also an attempt to deprive the plaintiff of his property. The conduct of the defendants to some how deprive the plaintiff of his legal due is evident from the plea taken by the defendants that the plaintiff is not the son of the 2nd defendant which was found against them. The creation of the release deed is also an attempt to deprive the plaintiff of his property. Since the document is the result of fraud there is no necessity to seek a declaration for setting aside this release deed. 12. Further, the fact that the plaintiff acquired a right on birth, the sale by the 2nd defendant including the plaintiff's share is not binding on the plaintiff and there is no necessity to seek for a declaration to set aside this release deed. Further this defense has not been taken earlier by the defendants in their written statement nor argued. This plea has been taken now during arguments before this Court. Therefore, the above defense of the defendants also fails. 13. In view of the above the Second Appeal is dismissed. Consequently, connected Miscellaneous Petition is also closed. No costs.