The settlement deed dated 04.04.1941 was not acted upon, confirming entitlement to a share in the property.

No Appearance JUDGEMENT The appellants have filed this appeal to set aside the judgement dated

10.03.2020 made in AS.No.118/2005 on the file of the Additional Subordinate Court, Namakkal, affirming the judgement and decree dated 25.11.2004 made in O.S.No.188 of 2004 on the file of Additional Munsif Court, Namakkal. 2. For the sake of convenience, the parties herein are referred to as they were ranked in the suit.

3. The plaintiff and the first defendant are the daughter and son of Sengoda Gounder. The first respondent herein filed the suit in O.S. No. 260 of

1996, which was later renumbered as O.S. No. 188 of 2004, seeking the relief of partition and claiming a ½ share in the entire suit property. She contended that the suit properties originally belonged to her father, Sengoda Gounder, by virtue of a settlement deed dated 10.05.1940 executed by his mother, Rasayee. Thereafter, Sengoda Gounder possessed and enjoyed the properties as his separate and self-acquired properties. He died intestate about 35 years ago, leaving behind the plaintiff (daughter), his son Jothi Velu (first defendant), and his wife Marayee as his legal heirs. After his death, they jointly possessed and enjoyed the properties. In August 1996, the plaintiff demanded partition, but the first defendant refused. Hence, she filed the suit claiming a ½ share in the properties.

4. The first defendant filed a written statement admitting the relationship and also admitting that the properties originally belonged to his father under the settlement deed executed by Rasayee. However, he objected to the plaintiff’s claim for division. He contended that by a settlement deed dated 04.04.1941, executed by his father in favour of his mother Marayee, a life interest was created in her favour, and thereafter the property would devolve upon the male legal heirs. According to him, after the demise of Marayee, he became the absolute owner of the properties. He further contended that he had been in exclusive possession and enjoyment of the properties after her death, and that the plaintiff was aware of the same. Suppressing these facts, the plaintiff had filed the suit as if the properties were in joint possession. He also stated that he had sold the properties to the second and third defendants and raised objections to the plaintiff’s claim.

5. Before the trial court, both parties adduced oral and documentary evidence. On the side of the plaintiff, PW.1 was examined and Ex.P1 and Ex.P5 were marked. On the side of the defendants D.W. to D.W.3 were examined and Ex.B1 to Ex.B16 were marked.

6. The trial court framed issues, particularly with regard to the plaintiff’s right and the validity and effect of the settlement deed dated 04.04.1941. Upon considering the evidence, the trial court found that the “Thana” settlement deed of 1941 relied upon by the defendants (Ex.B1) had not been acted upon. The court observed that even after the execution of the alleged settlement deed, the father and mother of the first defendant had jointly developed and enjoyed the properties, including by availing loans. During cross-examination, the joint patta (Ex.B5) was marked, which revealed that the patta stood in the joint names of the first defendant and his parents, and this was admitted by the first defendant. Therefore, the trial court concluded that the settlement deed of 1941 had not been acted upon and that the properties continued to be jointly possessed and enjoyed by the parents. Accordingly, the issues were answered in favour of the plaintiff, holding that the properties were the