JUDGMENT :

Sunder Mohan, J.

PRAYER : First Appeal is filed under Section 96 of C.P.C., against the Judgment and Decree dated 23.02.2018 made in O.S.No.81 of 2008 on the file of the IV Additional District Court, Erode at Bhavani.

The unsuccessful plaintiff in a suit for partition has challenged the Judgment in O.S.No.81 of 2008 dated 05.03.2008 passed by IV Additional District Judge, Erode in the above appeal.

2. The brief facts leading to the filing on the above appeal are as follows:

(a) The first respondent is the brother of the appellant, the second respondent is his sister. The appellant filed a suit for partition, claiming partition of the suit schedule properties which consists of four items.

(b) The averments in the plaint are that the appellant and the respondents are children of one late K.Sengodan. On 25.03.1964, a partition deed was effected between late Mr.K.Sengodan, his elder brother Mr.K.Muthusamy and their father Mr.Kandappagounder. In the partition, a property was allotted to Mr.K.Sengodan which is the first item of the suit schedule property. The suit properties are joint family properties. The appellant and the respondents are entitled to a share. The appellant is entitled to 4/9th share and the first respondent is entitled to 4/9th share and second respondent is entitled to 1/9 share. On 03.04.2008, the appellant issued a notice through counsel demanding partition of the properties. The first respondent issued a reply notice containing false allegations and stated that their father Mr.Sengodan had executed a Settlement Deed on 21.05.2007 in his favour. The said Settlement Deed is not true, valid, genuine, and not executed by the father voluntarily while he was in a sound disposing state of mind. The first respondent had obtained the Settlement Deed by fraud, undue influence and coercion. It may even be a forged document. The father of the appellant and the respondents was aged about 90 years. At the time of his death he was sick and he had poor eye sight. He died within 36 days from the date of Settlement Deed. There is no reason to disinherit the appellant and the second respondent in respect of a valuable property in Chennai. The first respondent had undue influence over the deceased Mr.Sengodan as he was staying with him. The Settlement Deed is void. The first respondent cannot derive any title under the said Settlement Deed. That apart the second item of the suit schedule property is not the self acquired property of late Mr.Sengodan. He had purchased the property from out of the income from the joint family properties. Therefore, the appellant prayed for partition of the suit property.

(c) The first respondent filed a written statement stating that the suit was not maintainable. The 1st respondent admitted that the partition took place in the year 1964 and the 1st item of suit schedule property was allotted to the share of Mr.K.Sengodan. Late Mr.Sengodan was admitted in K.H.M. Hospital, Anna Nagar one week prior to his death. The first respondent denied that the Settlement Deed was executed under undue influence, coercion and fraud. He further stated that the Settlement Deed dated 21.05.2007 is true and a genuine document. Mr.Sengodan was aged about 88 years at the time of his death and was in sound state of health and mind. The second item of suit schedule property was a self acquired property of late Mr.Sengodan. He did not indulge in any agricultural activities and was employed in Government Service since 1950. He had purchased the second item of the suit schedule property from and out of his earnings as a Government Servant. It was the self acquired property of Mr.Sengodan. The Settlement Deed was executed on 21.05.2007 and was accepted and acted upon immediately. The appellant never visited his father since 1993. After the death of the father, a sum of Rs.6.5 lakhs lying in the bank was divided between the appellant and the respondents. The first respondent has no objection in dividing the item Nos.1, 3