JUDGMENT :

Prayer: Appeal filed under Section 100 of Civil Procedure Code to set aside the judgment and decree dated 25.01.2010 made in A.S.No.24 of 2006 on the file of the District Court, Kanniyakumari reversing the judgment and decree dated 13.04.2006

The plaintiff in the suit is the appellant. The suit is for partition of appellant's 1/3rd share over the suit property. The suit was partly decreed in respect of Items 1, 3 and portion of 4th Item viz., 25½ cents. On appeal filed by the defendants, the findings of the trial Court were reversed and the suit was dismissed in its entirety. Aggrieved by the same, the unsuccessful plaintiff has come up by way of this second appeal.

Plaint averments:

2.1. According to the appellant/plaintiff, the suit properties are the ancestral properties of the appellant and the respondent. Originally, the suit was filed by the appellant against her mother and brother viz., the respondent. Pending first appeal, the mother died and the appellant and respondent were recorded as legal representatives of the deceased mother.

2.2. As per the plaint averments, the properties were managed by the father of the parties, viz., Rathinasamy and he died intestate on 29.01.1998.

Accordingly, the appellant claims that after death of the father, the properties devolved on her and the original defendants in the suit viz., the mother and the respondent herein.

2.3. It was further averred that the appellant got married in the year 1982 and at the time of marriage, the appellant was provided with some jewels and a sum of Rs.40,000/- and no property was given to her towards her share in the joint family properties. It was further averred in the plaint that after death of the father, the respondent herein started acting detrimental to the interest of the appellant and in spite of demands made by her for amicable partition, the respondent failed to respond and hence, she was constrained to file the suit for partition claiming her 1/3rd share in the suit property.

Averments contained in the written statement:

3.1. The respondent along with her deceased mother filed a written statement and contested the suit on the ground that the appellant was not in joint possession of the suit property subsequent to her marriage on 03.02.1982. It was also pleaded by the respondent that the appellant had executed a release deed relinquishing her share in the joint family properties on 18.01.1982. As far as the character of the suit schedule properties is concerned, the respondent pleaded that Item-1 of the suit property was purchased by his father Rathinasamy on 14.11.1951 and hence, it ought to be treated as his self-earned property. He pleaded that Items-2 and 4 were ancestral properties of his own and it cannot be treated as ancestral properties of the appellant. It was further pleaded that Item-3 was purchased by utilising the sale proceeds of ancestral property in Item-2.

3.2. It was further pleaded by the respondent that during the lifetime of his father, Rathinasamy, he executed a Will dated 07.03.1996 bequeathing his half share in Suit Items-2 to 4 and his self-earned property Item-1 in favour of the respondent and his son. Thus, according to the respondent, the appellant was not at all entitled to claim any right over the suit property in view of the registered Will dated 07.03.1996 and registered release deed dated 18.01.1982.

3.3. It was also pleaded that at the time of marriage, the appellant was provided with 50 sovereigns of gold jewels and cash of Rs.40,000/- and in addition to the same, a sum of Rs.39,000/- was deposited by the respondent and his father in the savings account of the appellant on 21.10.1980 and a sum of Rs.10,000/- on 11.11.1981. The respondent also raised a plea of ouster from 18.01.1982 viz., the date of release deed by the appellant.

Evidence let in before the trial Court:

4. Before the trial Court, the appellant/plaintiff was examined as P.W.1 and the respondent was examined as D.W.1. The attestor to the Will exe