A suit for annulment of a sale deed is barred by limitation if not filed within three years, and claims of fraud must be substantiated with evidence.

JUDGMENT

Challenging the decree and judgment of the Trial Court dismissing the suit for partition, the present suit has been filed.

2. For the sake of convenience, the parties are referred to as per their own ranking before the Trial Court.

3. The plaintiff is the daughter of the first defendant, 2 to 4 and 6^th defendants are sisters of the plaintiff and the 5^th defendant is the brother of the plaintiff.

4. It is the case of the plaintiff that the property was originally purchased by the first defendant/plaintiff's father on 03.06.1959 and he was in possession of the property and constructed 10 houses as well as two shops. At the time of construction of houses, all the defendants supported the first defendant physically and emotionally. The fifth defendant though being the son had not helped the first defendant in putting up the construction. The first defendant had sold more than 50% of the property and settled the debts of the family. Further, in the year 2006, the 5^th defendant took the first defendant to Registrar Office and obtained sale deed in his name. The sale deed was obtained by fraud making the first defendant to believe that only he is going to avail loan facility from the bank. Thereafter, the fifth defendant demanded the tenants to pay the rents to him. Hence, the first defendant has filed a suit in O.S.No.164 of 2006 on the file of Sub Court, Tiruppur to annul the document and later, in pursuant to the compromise, it was withdrawn, wherein, It is agreed between the parties that all of them are equally entitled to partition. Hence, the plaintiff has filed the suit for partition.

5. The first defendant filed written statement. According to him, believing the words of the fifth defendant that the document is a mortgage deed, he had executed the sale deed. Though he has filed a suit to annul the document in O.S.No.164 of 2006. Immediately, after the summons served on the fifth defendant, the 5^th defendant agreed to settle the property and thereafter, the suit has been withdrawn. Hence, prayed for decree and judgment.

6. The fifth defendant disputed the entire aspects. According to him, the plaintiff was married 40 years back and the defendants 2 to 4 also married 35 years back. The plaintiff and the defendants 2 to 4 and 6 also executed release deed in his favour and the first defendant had sold the property for a valuable consideration and the alleged compromise was also disputed. Hence, according to him, he is the absolute owner of the property. Therefore, prayed for dismissal of the suit.

7. Based on the above pleadings, the Trial Court framed the following issues for consideration:

1. Whether the suit is barred by limitation?

2. Whether the plaintiff is entitled to the relief of partition as prayed for?

3. Whether the plaintiff is entitled to the relief of declaration of the sale deed dated 08.06.2006 as null and void?

4. Whether the plaintiff is entitled to the relief of permanent injunction as prayed for?

5. To what other reliefs the plaintiff is entitled to?

8. On the side of the plaintiff, the plaintiff was examined as PW1 and marked Exs.A1 to A5. On the side of the defendants, DW1 to DW5 were examined and marked Exs.B1 to B11.

9. Based on the oral and documentary evidences, the Trial Court dismissed the suit for partition. Hence, the unsuccessful plaintiff has filed the instant appeal.

10. The learned counsel for the appellant submitted that the Trial Court has not gone into the entire issue and the documentary evidences has not been properly appreciated. The suit itself is for partition, when the first defendant himself has admitted that the sale deed is obtained fraudulently by the fifth defendant, the Trial Court ought not to have granted decree and judgment in his favour. Hence, seeks for allowing this appeal.

11. Mr.K.Myilsamy, learned counsel took notice for the third respondent and placed his submissions.

12. On hearing the learned counsel for either side and perusing the materials placed on record, this Court is in