The court affirmed that any property acquired by a female Hindu under the Hindu Succession Act is absolute property, and the burden of proving an oral partition lies with the asserting party.

JUDGMENT :

(M. JOTHIRAMAN, J.)

Unsuccessful defendants have preferred the appeal. The suit is filed for partition and for separate possession of ½ share in the suit schedule properties. The trial Court partly decreed the suit by granting ½ share to the plaintiff in respect of item 1 to 5 and dismissed the suit in respect of item 6 to 8.

2.For the shake of convenience, the parties are referred to as per their rank before the trial Court.

3.The brief Case of the plaintiff is as follows:-

The first defendant is the elder brother of the plaintiff and their father is Thonthi Karuppanan, who died when they were end leaving behind his wife Elamiammal, the plaintiff and the first defendant as his legal heirs. The second defendant is the son of the first defendant. The said Elamiammal used to reside at the residence of the plaintiff and the first defendant. During her lost days, the plaintiff alone had been looking after her. Elamiammal died on 02.01.2011 intestate. Item 1 to 4 of the suit properties are the ancestral properties. Other items stand in the name of his mother. After demise of Elamiammal, the plaintiff and the first defendant jointly inherited the suit properties. The plaintiff sent a legal notice on 20.04.2013 and the defendant sent a reply notice on 04.05.2013. In response to the same, the plaintiff sent a rejoinder notice on 21.05.2013. Hence, the suit.

4.The brief case of the defendant is as follows:-

The item 1 to 3 are the ancestral properties. After demise of their father, their mother Elamiammal maintained the minor children and out of her hard earned money. She purchased items 4 to 8 and the property to an extent of 5 cents in R.S.No.216/9 at Pudhur, Madurai and constructed houses therein. She also purchased the land to an extent of 1 cent at Vellalapatti village. While so, during her life time, she orally partitioned the suit properties in the year 1983 between the plaintiff and the first defendant. As per the said partition items 4 to 8 were allotted to the first defendant. Items 1 to 3 and 1 cent property at Vellalapatti village and 5 cents property at Appanthiruppathi and 5 ½ cents property at TWAD colony, Thiruppalai and 27 cents of Valaland in S.No.738/6A, 6C at Vallalapatti village were allotted to the plaintiff. After the said partition both have been in separate possession and enjoyment of their respective share of properties over 30 years by paying necessary tax. The plaintiff created forged sale deed in the name of his son Sudhakaran to an extent of 5 cents in S.No.216/9 at Pudur, Madurai from the said Elamiammal. The aforesaid Pudur and second item of the suit property were not brought into the said partition and those properties had been in possession and enjoyment of the said Elamiammal. While so, the said Elamiammal and the first defendant jointly executed settlement deed dated 21.02.2007, in favour of the second defendant in respect of item No.4 of the suit property. The said Elamiammal executed settlement deed in favour of the second defendant in respect of item 6 to 8 and thereafter, the second defendant has been in peaceful possession and enjoyment of the item 4 and 6 to 8 properties.

5.Based on the above pleadings, the trial Court framed the following issues:-

i)Whether oral partition took place in the year 1983?

ii)Whether the settlement deed dated 21.02.2007 in respect of suit items 4, 6, 7 and 8 in favour of the second d