Original statement made in the written statement about partition assumes importance.

The unsuccessful defendant before the lower appellate Court has filed this Second Appeal.

2. The respondent/plaintiff filed a suit in O.S.No.314/1990 on the file of the Principal Sub-Judge, Trichirapalli, for partition of his half share in the suit properties. The suit properties are four in number. According to the plaintiff, who is the father of the defendant, the suit properties are the joint family properties and so the same have to be divided and half share has to be allotted to the plaintiff.

3. The defendant-son, though originally filed a written statement giving consent for such partition, subsequently filed additional written statement and took a different stand stating that there was a partition on 18.11.1986 itself, and in the said partition, item Nos.1 and 3 and northern portion of item No.4 were allotted to him. He has also stated that he paid the loan amount and discharged the mortgage with respect to the 1st item. He claimed that after partition he has been enjoying the said properties.

4. The trial Court accepting the case of the defendant as set out in the additional written statement and on the basis of the alleged subsequent partition under Ex.B12 as claimed by the defendant, dismissed the suit. Hence the plaintiff preferred an Appeal in A.S.No.21 of 2001 on the file of the I Addl., District Judge-cum-Chief Judicial Magistrate, Trichirapalli. The learned District Judge reversed the judgment and decree of the trial Court only on the basis that Ex.B12 is not a registered document and so the claim made by the defendant under Ex.B12 cannot be accepted, and if it is accepted, the plaintiff is entitled for partition as prayed for. On the basis of the said finding, the learned District Judge allowed the Appeal by setting aside the judgment and decree of the trial Court and thereby decreed the suit for partition and held that plaintiff is entitled for half share in the suit properties. Hence this Second Appeal.

5. The substantial question of law that arise for consideration are :-

(1) Whether the Courts below are correct in relying on the additional written statement and Ex.B12 to accept the case of the appellant/defendant?

(2) can the appellant/defendant sustain his plea in the additional written statement, though he submitted to the decree for partition, stating in the original written statement that he has no objection for division of half share in the suit properties?

6. The respondent/plaintiff filed the said suit for partition on the basis that the suit properties are joint family properties. The respondent/defendant-son originally filed a written statement on 20.3.1992 stating that the suit properties were allotted to the respondent/plaintiff under the family partition deed dated 29.5.1981 and the plaintiff did not acquire any other properties thereafter. It is also specifically admitted that the suit properties are joint family properties. It is specifically stated in paragraph 6 of the written statement while denying the averments in paragraph 7 of the plaint that the defendant/appellant did not look after the cultivation. The said portion of the written statement is extracted hereunder:-

"The further averemnt in para 7 of the plaint that the defendant is looking after the cultivation and operation of the 1st item of the suit property for the past three years and that he is taking away the entire proceeds of the land, are all not admitted by this defendant. That is only the plaintiff who is enjoying the 1st item of the suit property. He is cultivating the I item of the suit property along with other leasehold lands taken by him."

Apart from the above said admission with respect to the I item, in paragraph 12 of the written statement, he has come forward with the following prayer:-

"It is therefore prayed that this Honourable Court may be pleased to pass a decree for partition and separate possession of ½ share of the defendant as the defendant is ready and willing to pay the necessary court fee for allot