The main legal point established in the judgment is the entitlement of the plaintiff to claim a share in the suit properties based on the evidence and admissions made by the parties.

JUDGMENT :

Prayer: Second Appeal has been filed under Section 100 of CPC against the Judgement and Decree dated 01.08.2008 passed in A.S.No.69 of 2007 on the file of the Principal Subordinate Court, Erode, Erode District, reversing the Judgment and Decree dated 28.07.2006 passed in O.S.No.284 of 2004 on the file of the District Munsif - cum- Judicial Magistrate Court, Perundurai, Erode District.

1. Challenge in this second appeal is made to the Judgement and Decree dated 01.08.2008 passed in A.S.No.69 of 2007 on the file of the Principal Subordinate Court, Erode, Erode District, reversing the Judgment and Decree dated 28.07.2006 passed in O.S.No.284 of 2004 on the file of the District Munsif - cum- Judicial Magistrate Court, Perundurai, Erode District.

2. For the sake of convenience, the parties are referred to as per their rankings in the trial Court.

3. The second defendant in O.S.No.284 of 2004 is the appellant in the second appeal.

4. Suit for partition.

5. The case of the plaintiff, in brief, is that the plaintiff is the daughter and the defendants 1 & 2 are the sons of Chinnappa Gounder and Palaniammal and the suit properties belonged to Chinnappa Gounder and the suit properties and the other properties belonged to the defendants and Chinnappa Gounder as their ancestral properties and in the family partition effected orally about 30 years back, the suit properties had been allotted to the share of Chainnappa Gounder separately and he was enjoying the same exclusively and died intestate leaving his wife and his children viz., the plaintiff and the defendants 1 & 2 and his wife also having died intestate, according to the plaintiff, she is entitled to obtain 1/3 share in the suit properties and as the defendants had failed to effect the partition and hand over her share, despite the issuance of notice, according to the plaintiff, she has been necessitated to institute the suit against the defendants for appropriate reliefs.

6. The second defendant resisted the plaintiff’s suit contending that the relationship of the parties set out in the plaint is true and also admitted that an oral partition took place between the defendant, his brother and their father about 30 years back and also the fact that the suit properties had been allotted to the share of Chinnappa Gounder and according to the defendant, in April, 1972, there was a family arrangement between the defendants and their father and on that basis, a registered partition deed was effected on 07.09.1973 by way of which, Chinnappa Gounder was allotted specific extent of 25 1/4 cents in 5 places in Old Survey No.948/3 and he did not retain any right or interest in any of the other properties and he did not have any right or share in the first item of the suit properties at the time of his death and he did not leave behind the suit properties as put forth in the plaint. The second item of the suit properties is an undivided common 33 cents and therefore, the plaintiff is not entitled to seek partition in the same and furthermore, there is a dwelling house in the suit properties and therefore, not entitled to seek the partition of the suit properties and according to the second defendant, the plaintiff has laid the present suit in collusion with the first defendant and therefore, prayed for the dismissal of the plaintiff’s suit.

7. In support of the plaintiff’s case, PW1 was examined and Exs.A1 to A5 were marked. On the side of the second defendant’ DWs1 & 2 were examined and Exs.B1 to B11 were marked.

8. On an appreciation of the materials placed on record and the submissions put forth by the respective parties, the trial Court was pleased to grant the relief of partition only in respect of the second item of the suit properties and dismissed the plaintiff’s suit as regards the first item of the suit properties and accordingly, granted the preliminary decree in favour of the plaintiff. Impugning the judgment and decree of the trial Court, the plaintiff had preferred the first appe