S. Vimala, J.

1. The suit has been filed by the plaintiff claiming 1/3rd share in respect of the suit property through partition.

2. The suit property is located at Door No. 3, III Cross Street, Lake area, Nungambakkam, ground measuring 2560 sq.ft. with construction of three floors of an area of 3330 sq.ft.

3. Brief Facts:-

(i) The Plaintiff and the defendants (D1 and D2) are the legal heirs of late N. Natarajan and Ponnammal. The Plaintiff's father died on 01.01.2010. The plaintiff is the eldest daughter. Out of hardwork, the plaintiff earned a lot and substantially contributed the same to her father towards purchase of the suit property. However, she is not asserting any independent right except as the heir of her deceased parents.

(ii) After the death of the father, the plaintiff issued notice dated 05.11.2010 seeking partition of the suit property. The first defendant issued a reply dated 25.11.2010 stating that he is not willing for effecting any partition. Hence, the plaintiff was compelled to file the suit.

4. The Brief averments made in the written statement of the first defendant:-

(i) The suit property originally belonged to the plaintiff's father by virtue of the sale deed dated 15.12.1966. After purchasing the property, he obtained sanctioned plan for construction of the building. The parents borrowed amount of Rs. 9480/- from the Government servant's Co-operative Mortgage Society on 20.06.1968 for the purpose of constructing the ground floor. This was repayable in 186 instalments at the rate of Rs. 95.10/-.

(ii) Thereafter, the father borrowed Rs. 11,000/- for the construction of the first floor, on 02.09.1969. Thereafter, for the purpose of putting additional constructions, he borrowed a sum of Rs. 1,00,000 from Nungambakkam Saswatha Dhaana Rakshaka Nidhi Limited and executed a mortgage deed dated 26.06.1989. This was executed along with his son Kalaimani and wife Ponnammal.

(iii) Apart from that, the father was paying the water tax, property tax and electricity charges.

(iv) The deceased Natarajan executed a registered Will dated 28.02.2002, bequeathing the entire property to 1. Ezhil, 2. Elangudi and 3. Minor Kalaivani, who are the daughters of the first defendant. Later the Will was cancelled by virtue of the cancellation deed dated 20.12.2006. On the day of revocation, the father executed a settlement deed dated 20.12.2006, settling the suit property in favour of Kalaimani giving him life interest and thereafter absolute rights to the daughters of Kalaimani. Therefore, the property belongs to the first defendant and his daughters.

(v) The plaintiff has absolutely no right over the suit property. The plaintiff has knowledge about the settlement deed and in fact she was abusing her father for having executed the settlement deed. Therefore, the suit has to be dismissed.

5. The following issues were framed for trial:

1. Whether the plaintiff is entitled to a declaratory decree with regard to 1/3rd share as claimed by him?

2. whether the deceased N. Natarajan executed the Will on 28.02.2002 and cancelled the will on 20.12.2006?

3. Whether N. Natarajan had executed the settlement deed on 20.12.2006 creating life interest in favour of the first defendant and vested remainder to the legal heirs of the deceased first defendant?

6. According to the case of the plaintiff, the suit property should be divided into three shares and plaintiff should be allotted one such share out of it.

6.1. The case of the first defendant is that the suit property is not divisible as it belongs to him and his legal heirs according to the settlement deed executed by his father.

6.2. Therefore, whether the property is a property belonging to the father and therefore, it is divisible or the father executed documents in favour of the defendant and his legal heirs and therefore, the property is not divisible viz a viz the plaintiff, is the main issue to be decided.

7. The relationship between the Plaintiff and the defendants as sister and brothers is an