A suit for partition cannot be maintained where the plaintiff fails to prove the ancestral nature of the property and where the subject property was legally alienated by existing coparceners prior to the legislative conferment of coparcenary rights upon daughters.

JUDGMENT :

S. Sounthar, J.

The unsuccessful plaintiff is the appellant. She filed a suit for partition of 1/5^th share. The suit was dismissed by the Trial Court and the findings of the Trial Court were affirmed by the First Appellate Court. Aggrieved by the concurrent findings, the plaintiff has come before this Court.

2. The appellant/plaintiff is the daughter of 1^st defendant. The defendants 2 to 4 are siblings of the plaintiff. The defendants 5 and 6 are sons of plaintiff’s brother, the 3^rd defendant. The 7^th defendant is the purchaser of the suit property from father of the plaintiffs and his son-3^rd defendant and grandsons-defendants 5 and 6. The 8^th defendant is the purchaser of the suit property from the 7^th defendant.

3. According to the appellant/plaintiff, the suit property is the ancestral property of her father-Ramaiah and after his death, the plaintiff and defendants 1 to 4 are entitled to 1/5^th share each. Hence, she laid a suit seeking partition of 1/5^th share.

4. The defendants 1 to 7 remained exparte and the suit was resisted only by the 8^th defendant. She filed a written statement stating that even during the life time of the plaintiff’s father, the suit property was sold to 7^th defendant on 30.07.1986. The said Sale Deed was executed by the plaintiff’s father-Ramaiah along with his son-3^rd defendant and grandsons- defendants 5 and 6. After sale, the revenue documents mutated in the name of the 7^th defendant in Patta No.1680 and he had been enjoying the same by paying kist to the Government. Later, the 7^th defendant sold the suit property to 8^th defendant for the valuable consideration of Rs.60,000/- on 13.04.2007 under the registered Document No.6464/2007 on the file of Sub-Registrar Office, Hosur and thereafter, the patta for the suit property was changed in the name of 8^th defendant in Patta No.3754 and she has been paying kist to the Government. Thus, according to the 8^th defendant, the suit property has been in possession and enjoyment of the 7^th defendant and 8^th defendant for more than 30 years and hence, the suit for Partition filed by the present plaintiff is not at all maintainable. It is further stated that the other family properties were divided between the defendants 1 to 4 under the registered Partition Deed dated 30.10.2013 and the plaintiff was paid a sum of Rs.1,50,000/- towards her share. The plaintiff suppressed the Partition Deed entered into between her and her siblings and came up with the present suit with the false averments. Hence, the 8^th defendant sought for dismissal of the suit.

5. Before the Trial Court, the plaintiff was examined as PW.1 and yet another witness was examined as PW.2. On behalf of the plaintiff, 5 documents were marked as Exs.A1 to A5. On behalf of the defendants, the 8^th defendant was examined as DW.1 and one M.Gurusami was examined as DW.2 and 7 documents were marked as Exs.B1 to B7.

6. The Trial Court on appreciation of oral and documentary evidence available on record, came to the conclusion that the plaintiff was not entitled to decree for partition and dismissed the suit. Aggrieved by the same, the plaintiff preferred an appeal in A.S.No.68 of 2021 on the file of the Additional District Court, Hosur. The First Appellate Court also affirmed the findings of the Trial Court. Aggrieved by the concurrent findings, the plaintiff has come before this Court.

7. The learned counsel appearing for the appellant would submit that the suit property is an ancestral