The legal principle established in the judgment emphasizes the treatment of properties allotted in a partition deed as separate properties, and the burden of proof in establishing the invalidity of settlement deeds.

JUDGMENT

(Prayer: Appeal filed under Section 96 of Civil Procedure Code to set aside the judgment and decree dated 28.04.2014 passed in O.S.No.73 of 2012 on the file of II Additional District Judge, Tiruchirappalli, in so far as dismissing the suit in respect of 1st item in ''A'' schedule and items 1 to 3 in ''B'' schedule is concerned, and allow the present appeal.)

R. Vijayakumar, J

1. The plaintiffs in a suit for partition are the appellants herein challenging the disallowed portion.

2. The plaintiffs had filed O.S.No.73 of 2012 on the file of II Additional District Court, Trichy for the relief of partition and separate possession of three items of ''A'' schedule property and four items of ''B'' schedule property.

3. The defendants 1 and 4 have filed a written statement raising a counter claim seeking recovery of possession from the first plaintiff in favour of the fourth defendant over a portion of second item of ''A'' schedule property.

4. The trial Court dismissed the suit with regard to the first item of ''A'' schedule property and Item Nos.1 to 3 of ''B'' schedule property. The suit was decreed only with regard to Item Nos.2 and 3 of ''A'' schedule property and Item No.4 of ''B'' schedule property. The trial Court had dismissed the counter claim made by the fourth defendant. Challenging the said judgement and decree, the plaintiff alone has preferred the first appeal and therefore, the partition decree granting partition with regard to some of the items and dismissal of the counter claim have attained finality.

5. Contentions of the plaintiffs:

(i)The plaintiffs 1 and 2 and defendants 1 to 4 are the sons of one M.Sundaramoorthy who had ancestral property. The said M.Sundaramoorthy had also acquired property in the name of his wife utilizing his ancestral nucleus.

(ii)During the life time of M.Sundaramoorthy, the father and his sons entered into a registered partition deed on 20.02.1998 under Exhibit B3 with regard to some of the properties. The other properties were kept in common enjoyment of the plaintiffs and the defendants.

(iii) On 19.08.2007, the said M.Sundaramoorthy died intestate. Thereafter, the sons entered into a partition agreement on 25.12.2008 in respect of the properties shown as ''A'' schedule property. As per the said agreement, the plaintiffs and the defendants have agreed to execute a registered partition deed in respect of the said properties on a future date. However, there was no partition by metes and bounds.

(iv)The properties that were not covered under partition agreement dated 25.12.2008 are shown as ''B'' schedule properties which were left by M.Sundaramoorthy as intestate. The plaintiffs jointly claimed 2/6th share in all the suit schedule properties.

6. Contentions of the defendants 1 and 4:

(i)The defendants admitted the registered partition deed dated 20.02.1998, but contended that they are the absolute properties of their father M.Sundaramoorthy.

(ii)In the second item of ''A'' schedule properties, there are two houses with Door Nos.2/68 and 2/69.

(iii)Door No.2/68 has been bequeathed by Sundaramoorthy in favour of the fourth defendant by way of a Will dated 05.12.2006 and therefore, the possession of the said house property should be handed over by the first plaintiff to the fourth defendant.

(iv)As far as Door No.2/69 is concerned, all the brothers are residing in separate portions of the said house and therefore, they have no objection for partitioning the same.

(v)The defendants did not have any objection for partitioning 3rd item of ''A'' schedule property and 4th item of ''B'' schedule property. As far as the first item of ''A'' schedule property is concerned it has been allotted to the first defendant in the partition deed dated 20.02.1998 and therefore, the same is not available for partition.

(vi)The 1st and