IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 28.02.2024 CORAM:

THE HONOURABLE MRS. JUSTICE T.V. THAMILSELVI Second Appeal No. 354 of 2019 and CMP No. 5168 of 2019 ---

Aswini .. Appellant Versus

1.Avaniraj (Died)

2.G.Vimalachini

3.Jayaraj

4.A.Cherom Milan (R1 died and R4 wasbrought on record as LR of deceased R1 vide Court order dated 14.07.2023 made in CMP.No.12657 of

2022 in S.A.No.354 of 2019 by TVTSJ.) .. Respondents Second Appeal is filed under Section 100 of the Code of Civil Procedure, prayed to set aside the Judgement and Decree dated 03.07.2018 passed in A.S.No.295 of 2016, on the file of the III Additional City Civil Court, Chennai, partly allowing the appeal and by modifying the judgment and decree dated 31.03.2016 made in O.S. No. 13852 of 2010 on the file of the XVI Assistant Judge, City Civil Court, Chennai.

For Appellant : Mr.R.Muruga Bharathi For R1 : Died For R2 : Mr.M.Manohar For R3 : Mrs. V. Srimathi For R4 : Mr. D. Rajarajan

J U D G M E N T

This appeal has been filed to set aside the Judgement and Decree dated

03.07.2018 passed in A.S. No. 295 of 2016, on the file of the III Additional City Civil Court, Chennai, partly allowing the appeal and by modifying the judgment and decree dated 31.03.2016 made in O.S. No. 13852 of 2010 on the file of the XVI Assistant Judge, City Civil Court, Chennai.

2. The appellant herein is the plaintiff, who has filed the suit in O.S.

No. 13852 of 2010 against her brother and sister for the relief of partition claiming 1/4^th share in A-Schedule property. Subsequently by way of amendment B-Schedule property was included in which also she claimed 1/4^th share. According to the appellant, both the properties belongs to his father. After the A-schedule property was purchased by her father in the year 1997 from Tamil Nadu Housing Board. Further, she would submit that B-Schedule property belongs to her father by way of partition in which also she is entitled 1/5^th share. It is stated that the father of the appellant died on 26.05.2007 leaving behind her mother, son and daughters (plaintiffs and defendant). Subsequently, her mother also died in the year 2010 leaving behind the plaintiff and defendants to succeed to their estate. In A-Schedule property the plaintiff and defendants are entitled to equal share, but the defendants joined together and did not allow the plaintiff to enjoy the property. The defendants are collecting the rent from the 1^st floor of the suit property till the date of filling of the suit, after filling of the suit, they have not received the rent of Rs.10,000/-, therefore in the rent arrears she is entitled 1/4^th share.

3. The defendants contested the case by filling their written statement, admitted the relationship but denied the plaintiff's claim for 1/4^th share in the A-Schedule property. According to the 3^rd defendant, he took care of his mother till her demise and out of love and affection she gave him 1/5^th undivided share in A-Schedule property and accordingly he is entitled to 2/5^th share in A-schedule property. In B-schedule property the third defendant claimed that he is having 1/4^th share. Further he would submit that he is maintaining the entire property by receiving rent and therefore, he denied the claim of the plaintiff for division of properties.

4. On considering both side submissions, the learned trial Judge concluded that the plaintiff is entitled for 1/5^th share in A-schedule property. It is also held that the settlement deed executed by the mother in favour of third defendant has not been acted upon for the reason that as per the evidence of D3/D.W.1 his mother collected rent till her demise, thereby it was held that settlement deed was not acted upon. Accordingly the plaintiff was allotted 1/4^th share in A-schedule property. In B-schedule also the trial court allotted 1/4^th share..

5. Aggrieved by the same, the 3^rd defendant has preferred an appeal in A.S.No.295 of 2006, wherein the First Appellate Judge, after analysing the oral and documentary evide