JUDGMENT :

Prayer: Appeal Suit filed under Section 96 of Civil Procedure Code, to call for the records and set aside the Judgment and Decree, dated 29.12.2005 in O.S.No.248 of 2004 on the file of the learned Additional District and Sessions Judge [Fast Track Court], Dindigul and allow this appeal with Costs.

1. This Appeal Suit has been filed to set aside the Judgment and Decree, dated 29.12.2005 in O.S.No.248 of 2004 passed by the learned Additional District and Sessions Judge [Fast Track Court], Dindigul.

2. The deceased Duraikaruppan/1st respondent herein/plaintiff had filed a suit in O.S.No.248 of 2004 on the file of the learned Additional District and Sessions Judge [Fast Track Court], Dindigul, for partition of 1/3rd share in the suit properties.

3. The case of the 1st respondent/plaintiff is that originally, the suit properties were belonged to one Kathirvelsamy Naicker and he died 15 years before leaving one daughter and two sons and the 1st respondent/plaintiff is the daughter. The appellant/1st defendant is the second son and the R-2 & R-3 herein are sons of another son. After the death of Kathirvelsamy/plaintiff, the R-2 to R-4/1st to 3rd defendants have possessed the properties and jointly enjoyed the same. 'A' & 'B' schedule properties are belonged to the father of the 1st respondent/plaintiff and hence, she has filed a suit for partition.

4. In the said suit, the appellant herein/1st defendant has filed a written statement and the 2nd and 3rd respondents/D-2 and D-3 have adopted the counter statement of the appellant/1st defendant and denied the rights of the 1st respondent/plaintiff. They have stated that, already the suit properties were partitioned in the year 1986. The 1st respondent/plaintiff got married before 30 years and therefore, she has no rights in the suit schedule properties and her rights were ousted.

5. The Court below has passed Judgment and preliminary decree in favour of the 1st respondent herein/plaintiff in O.S.No.248 of 2004 regarding the 1/3rd share. Aggrieved by the Judgment and Decree, the appellant/1st defendant is before this Court.

6. Heard on either side. Perused the material documents available on record.

7. The point for determination is that, Whether the rights of the 1st respondent/plaintiff is ousted as alleged by the appellant/1st defendant?

8. It is an admitted fact that the suit schedule properties are belonged to one Kathirvelsamy. The relationship between the parties are also admitted. The said Kathirvelsamy died in the year 1972 as per the written statement, but, no death certificate was filed. As per plaint, he died 15 years before from the date of filing of the suit. The 1st respondent/plaintiff has also not filed death certificate.

9. During the evidence of P.W.1, she has admitted that her grandfather died 15 years before and she got married 50 years before. Her father also died 25 years back and she has also admitted that her father may died in the year 1972.

10. Only, the 1st respondent/plaintiff has to prove the case that she has jointly enjoyed the properties in common, but, no proof has been filed by the her for possession. Further, the contesting parties before the Court below have pleaded that the rights of the 1st respondent/plaintiff was ousted. Therefore, it is a bounden duty of the 1st respondent/plaintiff to prove the joint possession.

11. On the other hand, the contesting respondents herein have possessed separate Patta from the year 1985. But, the 1st respondent/plaintiff has filed the suit only in the year 2004.

12. The plaintiff has relied upon the Judgment reported in 2020-5-LW-300, Vineeta Sharma Vs. Rakesh Sharma & Ors. The Hon'ble Supreme Court has held as follows:

“129. Resultantly, we answer the reference as under:

(i). The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after amendment in the same manner as son with same rights and liabilities.

(ii). The rights can be claime