A plaintiff is entitled to a share in joint family property despite a prior partition deed if there is evidence of consent from the father to grant such share.

JUDGMENT :

T.V. Thamilselvi, J.

The appellant, who is the plaintiff filed a suit in O.S.No. 56 of 2011 on the file of Principal District Judge, Krishnagiri against the defendants claiming partition of her 1/4^th share in the suit property. On hearing both sides, the trial judge dismissed the suit. Aggrieved over the same, the plaintiff preferred this Second Appeal.

2. For the sake of convenience, the parties are denoted as per the ranking in the suit.

3. Before the trial court, the plaintiff filed a suit claiming partition of her 1/4^th share in the suit property against the defendants stating that the 1^st defendant is her father, who had two sons viz., defendants 2 and 3 and one daughter, the plaintiff herein. All were enjoyed the properties as a joint family properties and not amicably agreed for partition. Hence, she came forward with this suit claiming 1/4^th share in the suit property.

4. The 3^rd defendant alone contested the suit and other two defendants remained exparte. The 3^rd defendant admits the relationship, but denied the plaintiff's claim over the suit property. He stated that already he along with his father and another brother, all the three partitioned the suit property along with other properties by means of registered partition deed dated 14.08.1991. Eversince then, they were in separate possession and enjoyment of properties and in that partition deed, the plaintiff being one of witnesses, but she never claimed any share in the properties nor she raised any objections all these years. Therefore, she is estopped by her conduct, besides she got married long back in the year 1984 before the Amendment Act, 1989. Therefore, 1989 Amendment Act would not support her. The defendants 2 and 3 are enjoying the properties separately and a portion of property was also sold to one Raman by these defendants. Therefore, he prayed to dismiss the suit as no merit.

5. Before the trial court, both parties adduced oral and documentary evidence. On the side of plaintiff, P.W.1 to P.W. 3 were examined and the documents Ex.A1 to A7 were marked. On the side of defendants, D.W.1 was examined and documents Ex.B1 to Ex.B4 were marked. Considering the evidence on record, the trial court framed four issues. Before the trial court, the plaintiff was examined as P.W.1, wherein she deposed that the suit property originally allotted to her grandfather Venkatappa chetty through partition. Thereafter, the suit properties were given to her father Krishnappa Chetty. Thereafter, sons and daughter of Krishnappa Chetty jointly enjoyed the suit properties. Accordingly, she is claiming 1/4^th share in the suit property. But the defendants admit the said aspect, but denied the fact that the plaintiff jointly possessed and enjoyed the properties along with them. Further, they have also took a defence that already partition was effected between his father and other brothers and partition deed was also marked as Ex.B1, in which the plaintiff is one of the attestor. Considering that, the trial judge held that if at all, signature of plaintiff was assigned forcibly as she claimed, she ought to have took steps to cancel the partition deed, but nearly about 12 years, she has not taken any steps, which itself shows that she consented to the partition and the partition deed has also been acted upon. Both of her brothers/defendants 2 and 3 eversince from the date of partition i.e. on 14.08.1991, they have enjoyed the properties separately. So, there is no property for division. Accordingly, issues were answered and suit was dismissed. Challenging the said findings, the plaintiff preferred this Appeal Suit.

6. The learned counsel for appellant argues that the trial court failed to take note of the fact that the suit properties are absolute properties of plaintiff's father/1^st defendant, who also made an endorsement and he has no objections to grant share to the plaintiff during the pendency of suit, which dehorse the alleged partition put forward by the 3^rd defendant. But