JUDGMENT

(Judgment of the Court was delivered by G.CHANDRASEKHARAN, J.,)

The appellant filed a suit in O.S.No.207 of 2009 on the file of III Additional District and Sessions Judge, Salem claiming 2/3 share in the suit properties. The suit was filed against her brother Vellingiri, appellant herein and her mother Alagiri Ammal. Alagiri Ammal, the second respondent in this appeal died during the pendency of this appeal leaving behind the appellant and the first respondent, and it was recorded. Now the appeal is contested by the first respondent Vellingiri.

2. The case of the appellant is that the suit properties and other properties were ancestral properties and in the partition between her father Annamalai Gounder and his brothers in 1962, the suit properties were allotted to Annamalai Gounder. The partition list was registered on 04.02.1992. Annamalai Gounder was in possession and enjoyment of the properties alloted to him along with the appellant, respondent, deceased mother and one more brother Arunagiri. They constituted Hindu Undivided Joint Family (HUF). Arunagiri left the family in the year 1984 without getting marriage and his whereabouts is not known till now. He is presumed to be dead in law. Annamalai Gounder died intestate on 09.09.2008. The suit properties are still undivided and being enjoyed in common by the appellant and respondent. The appellant demanded the respondent to effect partition on several occasions. However the respondent has not come forward to effect partition and give share to the appellant. During the pendency of this suit, the mother Alagiri Ammal executed a registered release deed in respect of her undivided 1/3 share in the suit properties in favour of the appellant for a valid consideration. As such the appellant is entitled to 2/3 share in the suit properties. Therefore, this suit claiming 2/3 share in the suit properties.

3. Respondent filed a written statement and additional written statement and his case, in brief, is as follows:-

The relationship between the parties is admitted. It is false to state that the suit properties are ancestral properties of Annamalai Gounder. The suit properties are the self acquired properties of Vavura Gounder, the grandfather of respondent. He purchased the suit properties through sale deeds dated 15.12.1950, 23.02.1960, 31.01.1961 and 31.08.1965. After his death, his sons namely Annamalai Gounder, Palaniappa Gounder and Natesan were enjoying the properties without any division. There was a partition koorchit executed between Annamalai Gounder and his brothers on 04.02.1992 and it was notorised on 04.02.1993. It is true that the suit properties are not divided by metes and bounds, but it is false to state that the suit properties are enjoyed in common by the appellant and respondent. The suit properties are not joint family properties. Since the suit properties were derived by Annamalai Gounder by way of partition koorchit dated 04.02.1992, they are to be treated as his individual properties. Appellant's marriage was celebrated in a fabulous manner by giving 50 sovereigns of gold along with other household articles. Respondent and Arunagiri along with the father celebrated the marriage of the appellant with the income derived from agriculture. It is false to state that Arunagiri left the family in the year 1984 without getting married and his whereabouts is not known and it has to be presumed that he is dead as per law. Respondent came to know that Arunagiri is living in a village somewhere in and around Chinnasalem, Villupuram District. The alleged release deed said to have been executed by mother Alagiri Ammal came to be executed in questionable circumstances. Alagiri Ammal was 75 years old at the time of execution of alleged release deed . Her mind and health was not stable for the past 6 to 7 years and she was not able to understand anything in proper manner. Alagiri Ammal was in the custody of appellant. Taking advantage of the fact that Alagiri Ammal was