The rights of daughters as coparceners are upheld, but registered partitions enacted before the relevant amendments cannot be contested unless fraud is proven.

COMMON JUDGMENT

These Second Appeals are directed against the judgment and decree passed in O.S.No.42 of 2015, dated 27.03.2017, on the file of the Additional District Court, Palani, reversing the judgment and decree made in O.S.No.184 of 2010, dated 04.06.2015, on the file of the Subordinate Court, Palani.

2. For the sake of convenience and brevity, the parties will hereinafter be referred as per their status/ranking in their original suit.

3. Admittedly, the plaintiff and the first defendant are the daughters of the defendants 2 and 6 and the defendants 2 to 4 are brothers and the fifth defendant is their sister. Pending suit, the second defendant had died and hence, his wife has been impleaded as sixth defendant. It is not in dispute that the suit properties and other properties were the ancestral properties of one Kandasamy gounder, father of the defendants 2 to 5, who obtained the suit properties vide partition deed dated 07.10.1944.

4. The case of the plaintiff is that when the plaintiff was demanding partition and allotment of her share, the second defendant had been postponing the same on some pretext or the other, that when the plaintiff was verifying the records for the purpose of partition, she came to know that there was a partition on 14.12.1988 between the defendants 2 to 4 which was an unequal partition, that the plaintiff also came to know that there was a sale in favour of the defendants 3 and 4 by the second defendant in respect of the properties allotted to the second defendant in the said unequal partition held on 14.12.1988, that when the same was enquired, the second defendant came to know about the unequal partition at that time only and informed that he never executed any sale deed in favour of the defendants 3 and 4, but only executed a lease deed, that the plaintiff, after coming to know about the fraud of the defendants 3 and 4, asked the defendants to revoke the earlier partition dated 14.12.1988, but the defendants 3 and 4 had refused the same and attempted to dispose of the suit properties behind the back of the plaintiff and that therefore, the plaintiff was constrained to file the above suit for partition and allotment of 4/36 shares to her.

5. The first defendant – sister of the plaintiff has filed a written statement supporting the case of the plaintiff. After the death of the second defendant, his wife was impleaded subsequently as the sixth defendant and she has also filed a written statement supporting the case of her daughter – plaintiff. It is pertinent to note that the second defendant – father of the plaintiff, though entered into appearance through his Counsel, has not chosen to file any written statement till his death.

6. The defence of the main contesting defendants 3 and 4 is that as per the partition deed dated 14.12.1988, the second defendant was paid a cash of Rs.20,000/- and the properties described in the “A” schedule in the partition deed, that their sister Valliammal - 5^th defendant was also paid a sum of Rs.6,000/- from the family funds referred in the “C” schedule and other properties were allotted to the share of the defendants 3 and 4, that the second defendant has purchased 2.46 acres in S.F.No. 22/3A1 and 0.72 acres in S.F.22/3A3 of Vedapatti Village, that the amount received by the second defendant under the partition deed dated 14.12.1988 was utilised to settle the loan incurred for purchasing the said properties, that the second defendant has sold 1.50 acres of land in S.No. 128/1A which was allotted to him in “A” schedule in the partition, in favour of the defendants 3 and 4, vide sale deed dated 03.03.1989, that the second defendant in the sale deed dated 03.03.1989 has accepted and acknowledged the earlier partition held on 14.12.1988, that the defendants 3 and 4 have been in possession and enjoyment of the said properties allotted to them in the partition and the property purchased from the second defendant, that mutations have also been effected in the revenue record