The main legal point established in the judgment is the admissibility of secondary evidence under the Indian Evidence Act and the requirement for foundational evidence before admitting secondary evidence.

JUDGMENT :

Prayer: First Appeal is filed under Section 96 read with Order 41 Rule 1 of C.P.C., against the decree and Judgment passed in O.S.No.839 of 2004, dated 26.12.2008 on the file of the Additional District and Sessions Judge, Coimbatore, (Fast Track Court No.II, Coimbatore).

1. The Appellant herein is the plaintiff in the suit before the Trial Court. The Appeal is directed against the dismissal of the suit filed for partition.

2. Case of the plaintiff:

Anganna Chettiar and Muniammal had two daughters and two sons. One daughter died unmarried issueless. One son predeceased his parents leaving behind his wife and children. The plaintiff is their sole surviving daughter and the first defendant is their sole surviving son. The defendant Nos.2 to 5 are the legal heirs of their predeceased son.

3. The property in Item No.1 of the suit property belongs to Muniammal inherited from her father Velliangiri. Item No.2 of the suit property belongs to Anganna Chettiar inherited from his mother Desakkal. Anganna Chettiar died on 05.06.1964. Muniammal died on 03.10.2004. One of their daughter Sulochana died issueless on 14.09.1997. Muniammal had a sister by name Visalakshiammal, who also died issueless on 21.10.2003. The suit properties item Nos.1 and 2 are jointly enjoyed by the two sons and one daughter of Anganna Chettiar and Muniammal. When the plaintiff sought for partition, the defendants refused to give share. Hence, suit for partition seeking 1/3rd share in the property of her parents.

4. Case of the defendants:

The relationship admitted. The fact that item No.1 property belongs to Muniammal and item No.2 property belongs to Anganna Chettiar is not wholly correct. They both had only limited interest till their life over the properties. Velliangiri Chettiar the father of Muniammal executed a settlement deed dated 06.07.1949 registered as document No.2531/49, wherein, the limited right of enjoyment till life without right of alienation was given to his two daughters. Muniammal and Visalakshiammal, after their lifetime to vest absolutely with two sons of Muniammal. Accordingly, after the lifetime of Muniammal and Visalakshiammal, the defendants had become the absolute owner of the item No.1 of the suit property and enjoying it without any obstruction. Likewise, the item No.2 property, belongs to Desammal and she executed a will dated 05.12.1937 got registered on 05.12.1937 bequeathing the property to the grand sons Krishnaraj and Ramalingam born to her son Anganna Chettiar. She gave only right of enjoyment till life to her son Anganna Chettiar. On the death of Desammal, the will came into force and acted upon. Anganna chettiar till his life time was enjoying the property and on his death, the defendant became the absolute owners of the said property.

5. After the death of their mother Muniammal, during the year 2004 the plaintiff tried to cause disturbance to their peaceful possession. The defendants gave police complaint and restored peace. The plaintiff live in Chennai. As a sister she was allowed to stay in the suit property when she visit. The plaintiff never been in possession or enjoyment of the suit property.

6. In the rejoinder, the plaintiff denied the validity of the settlement deed and the will referred in the written statement. Her contention was that those documents were never acted upon. She was in possession of the first item property before and after the death of her mother Muniammal. After filing the suit, the first defendant gave police complaint and forced her to vacate the suit property. She got married in the year 1976 and living with her family at Chennai. She used to stayed at the suit property often.

7. The 1st defendant filed additional written statement admitting that, the plaintiff used to stay in the suit property not as sharer, but as his sister. Thus, with these pleadings, the following issues were framed and matter went for trial.

1. Whether the settlement deed executed by Velliangiri in respect of item No.1