- (1.) This second appeal has been filed against the judgment and decree dated 29.08.2008 in A.S.No. 9 of 2008 on the file of the Principal Subordinate Judge, Salem confirming the Judgment and decree dated 25.08.2005 in O.S.No.928/1997 on the file of the learned II Additional District Munsif, Salem.
(2.) The brief fact of the pleading to file this second appeal is as follows: (i). The plaintiff and defendants are brothers and sisters. The plaintiff's father had purchased the property on 16.08.1948 and on 17.02.1971 respectively. Thereafter, the plaintiff's father died on 08.04.1974 and plaintiff's mother died on 11.06.1982. (ii). It is the case of the plaintiff that he had entered into an agreement to purchase a vacant site measuring 1100 sq.ft by paying Rs.500/- as advance on 02.01.1980. Thereafter, the property was purchased on 03.11.1980, after paying the balance sale consideration. Since at the time of registering the documents, a sum of Rs.250/- was in deficit, his mother provided it, so, the sale deed was registered in the name of his mother. Subsequently, on 20.03.1989, he paid back the amount to his mother and he obtained that property from her by way of a gift settlement deed in order to minimise the expenses. Thereafter, the plaintiff has married other caste women, so that, the defendants were developed a grudge against him. (iii) On 09.02.1993, the plaintiff lodged a police complaint that the defendants attempted to transfer the patta in respect of the joint properties in their own name, omitting his name. Hence, he issued a notice of objection to the Tahsildar on 22.12.1993. Again on 17.01.1994, the plaintiff lodged an another complaint to the Police and his wife also lodged a complaint on 22.01.1994 against the defendants that they were attempted to execute the documents behind the back of the plaintiff, for which, the plaintiff gave an objection to the Sub Registrar's Office, Salem on 19.10.1994. However, the defendants forced the plaintiff to sign the partition deed dated 27.10.1994 and the above deed was obtained by coercion and undue influence. In the above partition deed, the property allotted in favour of the plaintiff is only a meager and lesser share. Therefore, he filed a suit in O.S.No.928 of 1997 to declare that the above partition deed is null and void.
(3.) It is the contention of the learned counsel appearing for the defendants that as per the partition deed dated 27.10.1994, the plaintiff and defendants are in separate possession and enjoyment of their portions. In 1984, their father purchased the middle portion of the 2nd item of the suit property from joint family funds and they were jointly residing in the thatched house and the property was treated as joint family property. Plaintiff's mother had no money of her own and no means to purchase any property of her own at any time. The 1st item was purchased by their father in 1971 and subsequently, on 03.11.1980, two plots adjacent to their property were purchased by his father in the name of his wife namely the mother of the parties. According to the defendants, the plaintiff has not purchased the above plot. The alleged settlement deed was forcibly obtained by the plaintiff from her mother by way of a gift deed. The gift deed which covers property, was not the property of the mother and so, it conveys nothing. The plaintiff's father was also not aware of the gift deed.;