JUDGMENT :

Sathish Ninan, J.

The preliminary decree in a suit for partition is under challenge by the defendants.

2. The first plaintiff is the mother. The second plaintiff and the defendant are the son and the daughter born to the first plaintiff and her husband, late Rajan Menon. The issue involved in this appeal is confined to plaint schedule II item No.1 (“the property”, and hence the discussions hereunder are confined to that.

3. According to the plaintiffs the property sought to be partitioned belonged to the father and the mother (Rajan Menon and first plaintiff), under Exts.A1 and A2 Sale Deeds dated 17.12.1991 and 18.12.1991. On the death of the father, his one-half right over the property devolved on the plaintiffs and the defendant. The plaintiff seeks for partition and separate possession of their shares. The first plaintiff claims one-half share of the property in addition to the share inherited by her from her husband(4/6 shares).

4. The defendant disputed the claim that the property belonged to the father and the mother under Exts.A1 and A2 Sale Deeds. According to her, she and her mother – first plaintiff, had obtained property under Ext.B1 Partition Deed dated 22.05.1987, executed in the family of the mother. At that time, since the defendant was a minor, she was represented in the partition through her father as guardian. Subsequently, on 14.01.1992, the said property obtained under Ext.B1 partition, was sold away under Exts.B2, B3 and B4 Sale Deeds for a total consideration of Rs. 82,500/-. At that time though the defendant had just attained 18 years of age, she was under the care and protection of the parents. Utilising the consideration under Exts.B2 to B4 Sale Deeds the property in question was purchased under Exts.A1 and A2 Sale Deeds. The purchase is in trust for the defendant. At the relevant time, the father did not have other sources to purchase the property. Hence the defendant has one-half right over the property, is the claim.

5. The trial court held that the defendant was a major at the time of execution of Exts.B2 and B3 Sale Deeds and the burden of proof vested on her to prove that the purchase was utilising the said funds and in trust for the defendant. It was also held that the case of the plaintiff that the sale consideration obtained under Exts.B2 to B4 sale were utilised for the educational purposes of the defendant, is probable. Accordingly the claim of the defendant was negatived. It was held that the first plaintiff and her husband Rajan Menon has one-half share each over the property.

6. We have heard Sri.Nirmal.S, the learned counsel for the appellant-defendant and Sri.P.Chandrasekhar, the learned counsel for the respondents-plaintiffs.

7. The points that arise for determination are:-

(i) Does the evidence on record probabilise the defendant's contention that the acquisition of Exts.A1 and A2 Sale Deeds were utilising the consideration obtained by sale under Exts.B2 to B4?

(ii) Is the claim of the defendant that the acquisition of property under Exts.A1 and A2 is on her behalf under a trust by the parents, liable to be upheld?

(iii) Is the defendant entitled to in specie partition of the property purchased under Exts.A1 and A2 even if the acquisition thereunder was utilising the consideration obtained by sale under Exts.B2 to B4?

8. Exts.A1 and A2 Sale Deeds were on 17.12.1991 and 18.12.1991. The sale under Exts.B2 to B4 were a month later, in January, 1992. Therefore, the claim of the defendant that the purchase under Exts.A1 and A2 was utilising the sale consideration under Exts.B2 to B4 is evidently unsustainable, is the contention.

9. It is to be noticed that, the total sale consideration for Exts.B2 to B4 was Rs. 82,500/- and the purchase price under Exts.A1 and A2 was only Rs. 60,000/-. The first plaintiff mother has deposed that the sale under Ex