Point of Law: Suit for partition - plaintiffs can have no right to seek partition of the 3rd item property. While the 2nd defendant as the owner of the property had sold the property to 3rd defendant. After receiving the consideration and retracting the genuineness of the transaction by the 2nd defendant belatedly after lapse of four years does not inspire confidence and does not satisfy the requirement of Section 91 of the Evidence Act

Judgment :-

(Prayer: Appeal Suit is filed under Section 96 of C.P.C against the judgment and decree made in O.S.No.98/2007 on the file of the Additional District Judge (Fast Track Court No.II) at Cuddalore dated 28.07.2010.)

1. The appellants are the plaintiffs in the suit filed for partition, separate possession and permanent injunction restraining the 3rd defendant from alienating the 3rd item of the suit property.

2. The trial Court decreed the suit for partition in respect of the item Nos.1 and 2 and held that the plaintiffs are entitled for 1/4th share each. As far as the 3rd item is concerned, the relief sought against the 3rd defendant was dismissed. Against the disallowed portion of relief, the present appeal suit is filed.

3. The gist of the plaint is that the 1st defendant is the father of the plaintiffs 1 to 3. The 2nd defendant is the mother of the plaintiffs and the 3rd defendant is the sister of the 1st defendant. According to the plaintiffs, item Nos.1 and 2 of the suit property belongs to Kumarasamy Padayachi, who have five sons, Gopalaraman is one among them. During his life time of Kumarasamy Padayachi, partition took place between Kumarasamy Padayachi and his sons during the year 1970. Item Nos.1 and 2 was allotted to the 1st defendant Gopalaraman. Since then, the 1st defendant is in possession and enjoyment of the item Nos.1 and 2 of the suit property. Gopalaraman sold some of his properties at Marungur village and purchased the 3rd item property on 02.01.1976 in the name of his wife, the 2nd defendant. The sale consideration for purchasing the said property was from the joint family income and fund. Since the 3rd item property purchased from the joint family property fund, the same has to be treated as ancestral property and subjected to partition. The plaintiffs have come to know that the 2nd defendant had executed a sale deed in favour of the 3rd defendant due to coercion exerted on her and now the 3rd defendant tried to alienate the 3rd item property to third party. It is alleged in the plaint that the 3rd defendant, who is none other than the sister of the 1st defendant.

4. The 1st defendant had borrowed the money from the 3rd defendant and her husband in and around the year 2000. For the said money, the 3rd defendant has charged exorbitant interest for the money so borrowed. The 3rd item property was given as a security for the loan advanced. The loan was discharged on 20.07.2006. But on the same day, the 3rd defendant’s husband coercion, the 1st and 2nd defendants and got a sale deed executed in his favour in respect of item 3 of the suit property, as if, the 3rd defendant had paid the sale consideration of Rs.4,95,000/- for the 3rd item property. The said sale transaction is not binding on the plaintiffs, since the 3rd item property is a joint family property purchased out of joint family income in the name of the 2nd defendant who had no separate income of her own.

5. The 2nd and 3rd defendants filed written statement. The 1st defendant remained ex parte. In the written statement of the 2nd defendant it was admitted that item Nos.1 and 2 are the properties obtained by the 1st defendant under the family partition of the year 1970. The 3rd item property was purchased by the 1st defendant in the name of the 2nd defendant on 02.01.1976 and it has been treated, held and dealt with only as a joint family property. The 2nd defendant has no absolute title in respect of the 3rd item property. The 1st defendant borrowed money from one Ramachandran the husband of the 3rd defendant. Therefore, on 02.07.2006 the said Ramachandran / husband of 3rd defendant under threat and coercion obtained the sale deed from the 2nd defendant, for which she has not received any consideration. The plaintiffs and the 1st defendant are the true owners of the 3rd item property.

6. The 3rd defendant in the written statement had defended the suit stating that the suit has been filed at the instigation of the defendants 1 and 2 along with o