J U D G M E N T

In this Second Appeal, challenge is made to the judgment and decree dated 11.09.2009 passed in A.S.No.18 of 2008 on the file of the Principal District Court, Krishnagiri, partly modifying the judgment and decree dated 11.08.2008 passed in O.S.No.32 of 2000 on the file of the Principal Subordinate Court, Krishnagiri.

2. For the sake of convenience, the parties are referred to as per their rankings in the trial court.

3. Suit for partition, possession and mense profits.

4. The case of the plaintiff in brief is that the plaintiff is the daughter and the second defendant is the son of the first defendant and the plaintiff was married to one Rajaram in the year 1987 and they had two children and the plaintiff's husband began to ill-treat the plaintiff and therefore the plaintiff had left the company of her husband six years ago and came to her parents house along with the male child and subsequently the male child had been taken away by the plaintiff's husband and the plaintiff was provided separate residence by the defendants and accordingly the plaintiff was also enjoying the suit properties as the joint family member of the defendants and the suit properties are the joint family properties of the plaintiff and the defendants and accordingly, the plaintiff is entitled to obtain her share in the suit properties and further according to the plaintiff, during the pendency of the suit, the first defendant had died and the plaintiff and the second defendant alone are his legal heirs and the wife of the first defendant had already predeceased him and hence according to the plaintiff, she is entitled to obtain half share in the suit properties and hence the suit.

5. The defendants resisted the plaintiff's suit contending that the plaintiff was married to one Rajaram in the year 1987 and they were living separately in Krishnagiri. Out of their wedlock, they got two children. Though it had been admitted by them that the plaintiff is residing in the suit properties, however contended that the plaintiff was not enjoying the suit properties along with the defendants as a member of the joint family and further according to the defendants, the suit properties are not the joint family properties of the plaintiff and the defendants and according to the defendants, at the time of marriage of the plaintiff with Rajaram, she had been given 60 cents of land with 10 coconut trees, a mangalore tiled house, 15 sovereign jewels and sum of Rs.25,000/- towards her share and now with ulterior motive, the plaintiff and her husband are making false claim over the suit properties and had come forward with the suit and therefore the suit laid by the plaintiff is liable to be dismissed.

6. In the additional written statement, the second defendant putforth the case that except item 2, all other suit properties are the joint family properties of the second defendant and the first defendant and the plaintiff is not a member of the joint family and the plaintiff having married in the year 1987, she ceases to be a member of the joint family as well as not entitled to claim any share in the suit properties and further according to the second defendant, there was a partition between him and the first defendant by way of a registered partition deed dated 05.06.1995 and as per the same, the suit item 6 land S.No.124/3 dry 0.61 acres 0.24.5 hectares and the suit item 7 land S.No.177/1 dry 1.49 acres or 0.60.0 hectares were allotted to the share of the first defendant and the second defendant was allotted the suit item 3 land S.No.123/2 wet 1.18 acres or 0.46.5 hectares suit item 4 land S.No.124.2B wet 0.70 acres or 0.28.0 hectares and suit item 8 land S.No.178/3A dry 1.98 acres or 0.80.0 hectares and the suit item 5 land S.No.124/1A dry 0.28.0 hectares and also the terraced house mentioned in suit item II and the tiled house mentioned in suit item III were also allotted to the share of the second defendant and the second defendant has been enjoying the same