IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 07.12.2023 CORAM THE HONOURABLE MR. JUSTICE S.SOUNTHAR S.A.No. 1 of 2018 and C.M.P.No.26 of 2018 C.Valarmathi ...Appellant Vs.

Kulandayammal (died)

1.P.Selvaraj ...Respondent PRAYER: Second Appeal filed under Section 100 of the Civil Procedure Code, to set aside the judgment and decree dismissing the A.S.No.16 of 2016 dated 01.07.2017 on the file of the I Additional Subordinate Judge, Erode confirming the Judgment and decree in O.S.No.42 of 2014 dated 01.12.2015 on the file of I Additional District Munsif at Erode.

For Appellant : Mr.Prakash Goklaney For Respondent : Mr.T.Gowthaman

JUDGEMENT

The unsuccessful plaintiff in the suit for partition is the appellant. The appellant filed a suit for partition claiming ½ share in the suit property against the respondents/ her deceased mother Kulandayammal. The suit was dismissed by the Trial Court and the first appeal filed by the appellant was also dismissed. Challenging the concurrent findings against her, the appellant has come before this Court by way of second appeal.

2. According to the appellant/plaintiff, the suit property originally belonged to her paternal grandfather Vaiyapuri Mudaliar. He died 40 years ago leaving behind his wife Palaniammal, three sons namely Palaniappan, Sundaram, Manickam and four daughters namely Angayammal, Kamalammal, Mangayarkarasi and Jothimani. The said Palaniappan died intestate 37 years ago leaving behind the appellant/plaintiff, his wife Kulandayammal who was arrayed as 1^st defendant and 2^nd respondent/2^nd defendant. The daughters of Vaiyapuri Mudaliar executed a Release Deed on 02.02.1976 releasing their right in the property in favour of their brothers and heirs of deceased brother Palaniappan. Thereafter, there was a partition in the family between minor plaintiff, respondents, paternal uncles Sundaram and Manickam and in that partition, plaintiff was represented by her natural gaurdian and mother Kulandayammal, the 1^st defendant. In the said partition, the suit properties were allotted to Kulandayammal for life with vested remainder in favour of 2^nd defendant. It was averred by the appellant/plaintiff that natural guardian of plaintiff namely Kulandayammal had no right to release estate of the minor plaintiff in respect of the suit property and hence, the same was not valid and binding on her. Therefore, the plaintiff was constrained to file a suit for partition claiming ½ share ignoring the partition entered into between plaintiff, defendants and paternal uncles of plaintiff dated 02.02.1976.

3. The respondent/2^nd defendant filed a written statement denying the plaint allegations. The suit was mainly resisted by the respondent on the ground of limitation. The respondent also contended that plaintiff being a eo-nominee party to the partition deed dated 02.02.1976 cannot maintain the present suit for partition without seeking cancellation of the partition deed. It was also contended that in pursuance of the partition, the defendant had taken possession of the property and he had been in possession and enjoyment of the suit property for decades. It was also contended that partition deed dated 02.02.1976 cannot be ignored and the suit for partition is not maintainable after several years. 4. Before the Trial Court, the plaintiff was examined as P.W.1 and three documents were marked on her side as Ex.A1 to Ex.A3. On behalf of the respondent, the 2^nd defendant was examined as D.W.1 and no document was marked on behalf of the respondent.

5. The Trial Court, on appreciation of oral and documentary evidence available on record, came to the conclusion that the plaintiff failed to exercise the option of avoiding the partition within three years from the date of attaining majority and having failed to do so, the suit filed by the plaintiff after 37 years was not maintainable and hence, dismissed the suit. Aggrieved by the same, the appellant preferred an appeal in A.S.No.16 of 2016 on the file of the I Addit