P.HEMAMALINI Vs. K.PALANI MALAI

JUDGEMENT

(1.) Mrs.P.Hemamalini, the unsuccessful plaintiff has brought this first appeal, being aggrieved by the judgment and decree dtd. 28/3/2018 passed in O.S.No.181 of 2011 by the learned Additional District Judge, Additional District (Fast Track) Court, Mettur.

(2.) Shri N.Jothi, learned counsel appearing for the appellant/plaintiff pleaded that the appellant/plaintiff and the second respondent/second defendant are the daughter and son of the first respondent/first defendant. The appellant and the respondents 1 and 2 belong to Hindu Undivided Family, wherein the first respondent is the Kartha and the appellant and the second respondent are the coparceners and they have been in joint possession and enjoyment of the suit properties till date without any metes and bounds. While so, the appellant/plaintiff got married on 6/6/2008. Even after the marriage, the appellant was residing in her parents house till September, 2011. Thereafter, she went and settled down at her matrimonial house demanding her legitimate share in the suit properties. But the respondents 1 and 2 have denied to partition the suit properties. Later on the appellant came to know that the respondents 1 and 2, denying her request for partition, have created some fake documents by suppressing the legitimate share of the appellant to the properties, as though a partition had taken place on 11/5/2001. Further the appellant came to know that in order to deceive the appellant from getting her legitimate share in the suit properties, the respondents 1 and 2 gave some portion of the suit properties as security to the third respondent/City Union Bank and obtained loan for individual purpose. Again the respondents 1 and 2 have also entered into an agreement with the fourth respondent/Indian Oil Corporation for running a petrol bunk outlet in a portion of the suit properties. Therefore, a legal notice was sent to the respondents 1 and 2 on 13/10/2011 demanding partition and to allot the legitimate share in the suit properties to the appellant. The respondents 1 and 2 received the notice on 17/10/2011. Instead of partitioning the suit properties, the second respondent alone sent a reply notice to the appellant on 21/10/2011 alleging that the respondents 1 and 2 had already partitioned the suit properties on 11/5/2001 and the appellant had released her right in favour of the second respondent on 3/10/2011. Therefore, the suit was filed in O.S.No.181 of 2011 before the Principal District Court, Salem, which was transferred to the file of Additional District (Fast Track) Court, Mettur praying for a judgment and decree directing the defendants 1 and 2 to divide the suit properties into three equal shares by metes and bounds by taking into consideration of good and bad soil and allot one such share to the plaintiff and put her in separate possession, failing which to divide the suit properties by appointing a Court Commissioner for the purpose of the said partition and to declare the partition deed created by the defendants 1 and 2 on 11/5/2001 registered as Document No.1597 of 2001 in the Jalagandapuram Sub Registrar office as null and void and also for a permanent injunction restraining the defendants, their men, agents, servants and others from alienating or encumbering the suit properties to anyone until the partition is finally over.

(3.) Replying to the same, the first respondent filed a detailed written statement taking a stand that the suit was barred by limitation, because the appellant, after getting married in the year 2008, left for her matrimonial home; that she was not in joint possession and enjoyment of the suit properties; that the suit properties had already been partitioned between the family members of the first respondent in the year 1984 itself and that the suit properties are not the ancestral properties as alleged by the appellant, hence, the appellant is not entitled to one third share in the suit properties. It was further explained in the written statement that in the year 1984 itself the suit properties were allotted to the first respondent as -C- schedule properties through a registered partition deed among the first respondent and his brothers, hence the suit properties are the absolute properties of the first respondent. Therefore, it was pleaded that except the first respondent, nobody has got any right or title over the properties and due to his old age, the first respondent-Father has given away the other properties by way of partition on 11/5/2001 in favour of the second respondent-Son and that the second respondent has been in separate possession and enjoyment of his share by paying kist to the said properties. Moreover, when the second respondent is having every right individually to obtain loan in respect of his property, he entered into an agreement for running a petrol bunk through Indian Oil Corporation and these facts are also known to the appellant. However, after a lapse of ten years, the appellant is seeking a declaratory relief against the registered partition deed, therefore, the partition suit is barred by limitation. It was also further pleaded that the appellant was not entitled to any relief against the respondents 1 and 2.