IMPORTANT POINT
A party aware of a will at the time of a partition deed cannot avoid the document and maintain a suit for partition without challenging the partition deed.

JUDGMENT :

(Prayer: Second Appeal is filed under Section 100 of Civil Procedure Code, against the judgment and decree dated 14.11.2006 made in A.S. No.148 of 2004 on the file of the Principal District Judge, Chengalpattu, reversing the judgment and decree dated 15.07.2004 made in O.S. No.189 of 2001 on the file of the Principal Subordinate Judge, Chengalpattu.)

1. The plaintiff in the suit is the appellant before this Court. The second appeal is filed challenging the judgment and decree dated 14.11.2006 in AS.No.148 of 2004 on the file of Principal District Judge, Chengalpattu, reversing the judgment and decree dated 15.07.2004 in OS.No.189 of 2001 on the file of Principal Subordinate Judge, Chengalpattu.

2. For the sake of convenience, the parties are referred to as per their ranking before the trial court.

The brief facts, which gave rise to the second appeal, are as follows:

3. According to the plaintiff, the suit properties originally belonged to Chakrapani Reddiar who is the husband of the first defendant and the father of the plaintiff and defendants 2 to 5. Only during May 1995, when the plaintiff was searching for her horoscope, she came across the registered will dated 29.10.1975 in Ex.A.3. As per the recitals in the will, the 'A' schedule will go to Andalammal, who is the first wife of Chakrapani Reddiar, entitled to enjoy till her lifetime without the power of alienation, thereafter it should be taken equally by the plaintiff and the defendants 2 to 5. Further, according to the will, the first defendant has to maintain and manage the 'B' schedule property and has to divide the said properties equally in a fair manner without any bias or favour to the plaintiff and defendants 2 to 5. Further, as per the will, the 'C' schedule properties were bequeathed in favour of Muralikrishnan, who is the brother's son of Chakrapani Reddiar. Since Muralikrishnan died as a bachelor and his father and mother also predeceased him, the plaintiff's father himself alienated the said property mentioned in the 'C' schedule given to Muralikrishnan.

4. According to the plaintiff, the defendants 1 and 4 suppressed about the will and partitioned the suit property and allotted a lesser value property to her. Since the plaintiff was unaware of the will, she was made to believe the partition and subscribe her signature in the partition deed dated 22.01.1987 in Ex.A.1. Only in May 1995, the plaintiff got the knowledge of the will and it was found that the directions given by her father Chakrapani Reddiar, in the will were not followed by the first defendant. Since the first defendant has not divided the share equally, the plaintiff has filed the suit for partition claiming 1/5th share in the suit properties.

5. The fourth defendant filed the written statement resisting the suit stating that the partition executed on 22.01.1987 through Ex.A.1 between the plaintiff and the defendants is fair, just and equitable. According to the defendants, the partition was executed by the plaintiff voluntarily and out of free will and volition. Once the partition is made, it is final and cannot be reopened without setting aside the partition deed. Hence the suit filed for partition without praying to set aside the partition deed in Ex.A.1 is not maintainable. Further, the defendant has stated that the partition deed in Ex.A.1 has been acted upon by all the executants, and this defendant had made valuable improvements over the items allotted and delivered to her. In fact, the plaintiff has also acted upon the partition and she had sold away the property allotted to her.

6. The 4th defendant has further averred that the plaintiff has not impleaded the purchasers as a parties to the suit and therefore, the suit is bad for non-joinder of necessary party. It is also stated that the will could not have been acted upon as Chakarapani Reddiar has sold many items of the properties in the will and also acquired many items subsequent to the will. Hence the children and wife of Chak