The burden of proof lies on the plaintiff, and the plaintiff can succeed only on the strength of the case. The court should not pass an ex-parte judgment without directing the plaintiff to prove the facts. The plaintiff's case must be proved by oral and documentary evidence.

M. Duraiswamy, J.

1. The above appeal arises against the judgment and decree dated 24.11.2009 passed in O.S.No.539 of 2006 on the file of the Additional District Court-cum-Fast Track Court No.I, Coimbatore.

2. The second defendant is the appellant. The first respondent was the plaintiff. The respondents 2 to 4 were the defendants 1, 3 and 4 respectively. The plaintiff filed the suit in O.S.No.539 of 2006 for partition, delivery of possession and for costs.

3. The brief case of the plaintiff is as follows:-

(i) The first defendant is the mother of the plaintiff and the second defendant. The third defendant is a private Trust said to have been created by the first defendant. The fourth defendant is a partnership firm consisting of plaintiff and the defendants as its partners, which according to the plaintiff was dissolved with effect from 31.3.1996. The suit property consists of land and building. According to the plaintiff, the suit property was originally purchased in the name of the second defendant under two registered sale deeds dated 30.10.1991. The first defendant has been doing business in sarees for more than 3 decades and out of the fund so earned by her, the suit property was purchased in the name of the second defendant. The construction was put up by the first defendant with her funds. The suit property was always treated and enjoyed as joint family property and the plaintiff and the defendants 1 and 2 have equal rights in the same.

(ii) According to the plaintiff, by a partnership deed dated 1.4.1994, the plaintiff and the defendants 1 and 2 constituted a partnership firm amongst themselves in the name and style of M/s.Palani Murugan Silks, which is the fourth defendant. The suit property was brought into partnership firm as capital to be treated and held as the property of the fourth defendant firm and was so treated and held by the plaintiff and the defendants. The defendants 1 and 2 wanted the signature of the plaintiff in a document called Memorandum dated 30.03.1996 representing that the family property, namely, the suit property was taken to the third defendant Trust and the plaintiff was informed that he would get his share/benefit from the Trust. The plaintiff was not aware of the contents of the Trust deed but was made to believe that the Trust was intended for the benefit of the entire family members.

(iii) The fourth defendant firm was dissolved with effect from 31.03.1996. The suit property was let out to various tenants and the income arising there from has been shared and distributed amongst the plaintiff and the defendants 1 and 2. The plaintiff did not suspect the defendants 1 and 2 being mother and sister respectively. Thereafter, in the month of October and November, 2006, there has been dissensions in the family, particularly, between the defendants 1 and 2. The dissensions arose because of the impending marriage of the second defendant's daughter, to a groom whom the first defendant has not approved. As a result of such dissensions, the second defendant asserted that she is the exclusive owner of the suit property as the title deeds stand in her name. Subsequently, the plaintiff also came to know that he was not a beneficiary in the third defendant Trust and he has been duped in this regard by the representations of the defendants 1 and 2.

(iv) The Trust has not been recognised and the purported vesting of the property in the third defendant has been rejected by the Income Tax Department.

(v) In such a scenario, the suit property itself continues to vest in the erstwhile fourth defendant firm as per the partnership deed dated 1.4.1994. But, the plaintiff being an erstwhile partner of the fourth defendant firm is entitled to 1/3rd share in the suit property. The plaintiff is in joint possession and enjoyment of the suit property. In these circumstances, the plaintiff filed the suit.

4. The brief case of the second defendant is as follows:-According to the second defendant, the suit is n