JUDGMENT

(Prayer: Second Appeal filed under Section 100 of the Civil Procedure Code, to set aside the judgment and decree dated 07.04.2015 made in A.S.No.3 of 2013 on the file of Principal District Judge, Salem confirming the judgment and decree dated 23.07.2012 made in O.S.No.124 of 2007 on the file of II Additional Sub-Ordinate Judge, Salem.)

1. The plaintiff in the suit is the appellant. She filed a suit for partition claiming 3/12 share in the suit properties against the respondents. The suit was partly decreed in respect of “D” schedule properties in Ex.A1, Partition Deed dated 25.04.1966. The suit was dismissed in respect of “C” schedule properties in Ex.A1, Partition Deed. Aggrieved by the same, the appellant/plaintiff preferred an appeal. The First Appellate Court also affirmed the findings of the Trial Court. Hence, the appellant has come before this Court by way of this second appeal.

2. According to the appellant/plaintiff, the suit properties originally belonged to Marimuthu Padayachi and his brothers. The said Marimuthu Padayachi had two sons namely Kuppusamy and Narayanan. The appellant/plaintiff is the daughter-in-law of said Narayanan and her husband Subramaniam died on 06.12.1992. There was a partition in the family in the year 1966. Under the partition deed dated 25.04.1966, the “D” schedule properties were alloted to the said Narayanan and “C” schedule properties were alloted to Kuppusamy. It was averred by the appellant that Kuppusamy died 20 years back and his wife Sivabakkiam also died in the year 1990 without any issues. Therefore, the properties allotted to the Kuppusamy devolved on his brother Narayanan's family and the properties alloted to Kuppusamy were enjoyed along with the properties allotted to Narayanan. The husband of appellant/plaintiff namely Subramaniam died on 06.12.1992.Thereafter, the appellant demanded partition of her share in the joint family. As the respondents were not willing to go for partition, she was constrained to file a suit for partition in O.S.No.124 of 2007 on the file of II Additional Sub-Ordinate Judge, Salem.

3. The respondents herein filed written statement and claimed that the property allotted to Kuppusamy was enjoyed by him till his death. Thereafter, it devolved on his wife Sivabakkiam and she enjoyed the same till her death on 07.06.1993. It was also claimed by the respondents that during the lifetime of Sivabakkiam, she executed a Will in favour of 6th defendant namely Yuvaraj and hence, the appellant/plaintiff was not entitled to any share in the suit property.

4. Before the Trial Court, the appellant/plaintiff was examined as P.W.1 and 5 documents were marked on her side as Ex.A1 to Ex.A5. The 4th respondent herein/5th defendant was examined as D.W.1 and one Sepperumal Padayachi was examined as D.W.2 and 14 documents were marked on behalf of the respondents as Ex.B1 to Ex.B14.

5. The Trial Court, on appreciation of oral and documentary evidence available on record, came to the conclusion that appellant/plaintiff was entitled to 3/12 share in the properties allotted to Narayanan namely “D” schedule in Ex.A1, Partition Deed. As far as properties alloted to the share of Kuppusamy under “C” schedule to the partition deed, the suit was dismissed on the ground that the appellant failed to prove after the death of Kuppusamy and Sivabakkiam, the property was enjoyed as a joint family property by Narayanan's sons. Aggrieved by the dismissal of the suit in respect of property covered by “C” schedule to the partition deed, the appellant preferred an appeal in A.S.No.3 of 2013 on the file of the Principal District Court, Salem. The First Appellate Court affirmed the findings of the Trial Court. Challenging the said judgment and decree, the appellant is before this Court by way of second appeal.

6. At the time of admission of Seconal Appeal, this Court formulated the following substantial question of law;

“1. Whether the Courts below are right in dismissing the su