IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 24.02.2025 Coram:

THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR Appeal Suit No.244 of 2022 and CMP.No.8783 of 2022 Rukmani. .. Appellant /versus/

1.Sampoornam 2.Vijayakumar

3.Padmavathi .. Respondents Appeal Suit has been filed under Section 96 of C.P.C., praying to set aside the judgment and decree dated 23.04.2021 made in O.S.No.226 of

2016 on the file of the I Additional District Court, Salem.

For Appellant :Mr.S.S.Rajesh For Defendant :Mr.V.Raghavachari, Senior Counsel For Mr.S.Kalyanaraman

JUDGMENT

Challenging the decree and judgment dismissing the suit filed for partition and declaration of the settlement deed dated 29.06.2015 as null and void, the present appeal came to be filed.

2. The plaintiff is the daughter of the first defendant. The defendants 2 to 4 are the wife and children of one Chellappan, who is the brother of the plaintiff. According to the plaintiff, the suit property is ancestral properties and she is entitled to 1/3rd share and the property is in joint possession. The alleged settlement deed executed by the first defendant dated 29.06.2015 not binding on her, hence, the plaintiff sought for partition of ½ share of the property.

3. The defendants filed written statements denying the right of the plaintiff. According to them, after the marriage of the plaintiff, she was never in joint possession of the property. It is the further contention that on 11.03.1971, the first defendant and his son have partitioned the property, wherein, the property has been alloted to Chellappan and first defendant, thereafter, the first defendant has executed the settlement deed dated 29.06.2015 in favour of the grandson/third defendant. Similarly, the second defendant and the fourth defendant have also released their share in favour of the third defendant. Mutation is also effected in their favour. Hence, sought for dismissal of the suit. Hence, opposed the suit

4. In the light of the above pleadings, the following Issues were framed by the trial Court for consideration:-

(1)Whether there was an oral partition effected between the first defendant and his son during the year 1971?

(2)Whether the plaintiff is entitled to ½ share in the suit property as prayed?

(3)Whether the property is the joint family property as stated by the defendants 1 to 4?

(4)Whether the settlement deed dated 29.06.2015 is true and valid?

(5) Whether the plaintiff is entitled for declaration of the settlement deed dated 29.06.2015 as not valid?

(6) To what other reliefs, the plaintiff is entitled to?

5. On the side of the plaintiff, PW-1 and PW-2 were examined and Ex.A1 and A8 were marked. On the side of the defendants, DW-1 to DW-3 were examined and Exs.B1 to B13 were marked.

6. Based on the oral and documentary evidence and materials placed on record, the trial Court dismissed the suit on the ground that the property has been orally partitioned between the first defendant and son and that apart, the plaintiff is not in possession of the property. Challenging the judgment and decree, the present Appeal Suit came to be filed.

7. The learned counsel for the appellant submitted that the Trial Court has non-suited the plaintiff mainly on the basis of her admission and revenue records. According to him, the oral partition has not been established in the manner known to law. Therefore, the Trial Court dismissing the suit is not valid in the eye of law. As per the Hindu Succession (Amendment) Act, 2005 (39 of 2005), the plaintiff is entitled for her share in the suit property.

8. Whereas, the learned counsel for the respondents submitted that the plaintiff herself has clearly admitted the oral partition and her evidence also indicate that she was never in possession of the property. Further, the oral partition is also proved by public documents like patta and other revenue records, thus, it has to be held that there was a valid partition. Hence, the plaintiff cannot claim any share under Act 39 of 2005 as alleged by the plaintiff.

9.