Judgment :- 1. The plaintiff in the suit filed this appeal as against the judgement and decree dated 29.6.2009 passed by the Additional District Judge, 3rd Fast Track Court Judge, Thiruvallore, in O.S.No.342 of 2007, which was filed for partition of the suit properties. 2. The parties, for the sake of convenience, are referred to hereunder according to their litigative status and ranking before the trial Court. 3. A summation and summarisation of the relevant facts absolutely necessary and germane for the disposal of this appeal would run thus: (a) The appellant/plaintiff filed the suit for partition seeking the following relief: "to pass a decree i) for partition of the suit A schedule item into 3 equal shares and put the plaintiff in separate possession of one such share. ii) for partition of suit item B schedule items into two shares and allot one such share to the plaintiff and the other to 1st defendant. iii) for recovery of the plaintiffs 1/3rd share income from the date of plaint from A schedule items till separate possession is given. iv) for costs of the suit." (extracted as such) mainly on the ground that her deceased husband-Thanikavel, being the son of deceased Selvaraj, had share in the suit properties and that the other sharers, namely, D1-the widow of Selvaraj and Kumaravelan-the second son of the deceased Selvaraj were not agreeable for amicable partition. (b) The defendants jointly filed the written statement resisting the suit to the effect that the suit properties 1 and 2 happened to be the self-acquired properties of Selvaraj and his wife-Dhanalakshmi-D1 herein, as those properties were purchased from out of the income of the deceased Selvaraj and joint exertion of D1 and D2 and that those items 1 and 2 were not purchased from out of the sale proceeds of any ancestral properties, as alleged in the plaint. (c) The 3rd item of the suit properties, namely, the house was constructed on a porambokke land, encroached by the defendants recently. (d) The deceased Selvaraj and D1 executed a Will in favour of D2, which was expected to come into force after the death of D1. (e) The deceased Thangavel-the husband of the plaintiff dissipated the huge financial support rendered by his parents by mishandling his business. Accordingly, the defendants prayed for the dismissal of the suit. (f) The trial Court framed the issues. (e) The deceased Thangavel-the husband of the plaintiff dissipated the huge financial support rendered by his parents by mishandling his business. Accordingly, the defendants prayed for the dismissal of the suit. (f) The trial Court framed the issues. (g) During trial, the plaintiff examined herself as P.W.1 along with Pw.2 one Selvam and Exs.A1 to A5 were marked. On the defendants side, the first defendant examined herself as D.W.1 along with D.Ws.2 and 3 and Exs.B1 to B3 were marked. (h) Ultimately, the trial Court dismissed the suit. (i) Being aggrieved by and dissatisfied with the judgment and decree of the trial Court, the plaintiff preferred this appeal on various grounds. 4. The learned counsel for the appellant/plaintiff, placing reliance on the grounds of appeal would develop his arguments thus: (i) In the reply notice-Ex.A5 issued by the defendants to the plaintiff, the former candidly and categorically admitted that they were ready and willing to share item No.3 of the suit property with the plaintiff; however, ignoring even that fact, the trial Court simply dismissed the suit. (ii) The plaintiff, being the widow, it appears, having no substantive knowledge about the property background of the family of her in-laws and her husband, instructed her advocate as though items 1 and 2 were purchased with the help of the sale proceeds of the ancestral properties; but Ex.A1-the partition deed dated 7.2.1994 would reveal that the deceased Selvaraj, only in the year 1994 got six acres of land and a house towards his share, which are found specified as C schedule in that partition deed. However, Ex.B3-the sale deed dated 25.7.1986 would reveal and indicate that the items 1 and 2 of the suit properties were purchased by Selvaraj and D1. The relevant pleading in the plaint should have been to the effect that from out of the income derived from the ancestral properties, the items 1 and 2 were purchased by Selvaraj and that he also put up construction in the 3rd item of the suit properties. (iii) In the facts and circumstances of this case, the concept blending also can be ushered in. (iii) In the facts and circumstances of this case, the concept blending also can be ushered in. Because of the plaintiffs helpless condition, she could not properly instruct her advocate; consequently she could not participate in the proceedings before the trial Court with the proper pleadings and evidence (iv) The contention on the side of the defendants as though the parents of the plaintiffs deceased husband helped monetarily her deceased husband to set up business, which ended in fiasco, is not borne by evidence. Arguing as above, the learned counsel for the appellant/plaintiff would pray for remanding the matter to the lower Court, taking into account all these features. 5. In a bid to shoot down and torpedo, pulverise and refute the arguments and the contentions as put forth on the side of the appellant, the learned counsel for the respondents/defendants would pilot his arguments, which could precisely and briefly, pithily and tersely be set out thus: (i) The plaintiff cannot try to take shelter by pleading that she is a widow, having no substantive knowledge about the property background of her in-laws. (ii) In the plaint itself Ex.A1 is found cited as the first document in the list of documents and in such a case, the plaintiff cannot veer round and now take a plea quite antithetical to what she stated in her plaint. (iii) Despite knowing about the contents of Ex.A1, the plaintiff did choose to dish out a false plea as though the properties were purchased from out of the sale proceeds of the ancestral properties and in such a case, no indulgence can be shown towards her for correcting her pleadings and also adducing additional evidence. (iv) The land referred to in item 3 is a porambokke land and as such, it cannot be the subject matter of partition. (v) The plaintiff cannot try to put the cart before the horse. As an after thought, she cannot try to improve upon her pleadings and consequently, improve her case, which would lead to multiplicity of proceedings and prolongation of litigation. (vi) It is an admitted fact that the plaintiffs husband was financially helped by his parents for setting up business, but he, by his own conduct allowed the business to run into loss; wherefore the plaintiff cannot now seek for any indulgence of getting the matter remanded to the trial Court. 6. (vi) It is an admitted fact that the plaintiffs husband was financially helped by his parents for setting up business, but he, by his own conduct allowed the business to run into loss; wherefore the plaintiff cannot now seek for any indulgence of getting the matter remanded to the trial Court. 6. The points for consideration are as under: (i) Whether the plaintiff being the widow could be shown any indulgence, in remanding the matter back to the trial Court, so as to enable her to rectify the mistakes in her pleadings and also to adduce additional evidence. (ii) Whether the trial Court was justified in accepting that items 1 and 2 of the suit properties were purchased by Selvaraj and D1 even though as on the date of emergence of Ex.B3-the sale deed, Selvaraj had sizable income bearing share in the ancestral properties? (iii) Whether the trial Court was wrong in notnoting that there was no clarity in the written statement of the defendants as to when the house in the III item of the suit properties was built and with what source of income, so to say, with or without the income from ancestral property or the sale proceeds of the ancestral properties? (iv) Whether the trial Court was justified in not ordering partition of the house in the III item of the suit properties, despite defendants admission in Ex.A5? (v) Whether there is any perversity or illegality in the judgement of the trial Court? 7. The gist and kernal, the nitty-gritty of the admitted facts or at least the undeniable facts would run thus: D1-Dhanalakshmi is the widow of deceased Selvaraj. The couple gave birth to two sons, namely, (i) Thanikavel-the deceased husband of the plaintiff Dharani and (ii) D2Kumaravelan. The couple Dharani and Thanikavel did not give birth to any child; however, Thanikavel met with his untimely death, whereupon there erupted a rift in the relationship between the plaintiff and the defendants. Ultimately, she filed the present suit seeking partition of her husbands share in the suit properties. 8. The couple Dharani and Thanikavel did not give birth to any child; however, Thanikavel met with his untimely death, whereupon there erupted a rift in the relationship between the plaintiff and the defendants. Ultimately, she filed the present suit seeking partition of her husbands share in the suit properties. 8. At this juncture, I would like to point out that the plaintiffs very prayer, claiming that she is entitled to 1/3rd share in the I item of suit properties, even as per her narration of facts, is a misconceived one for the reason that consequent upon the death of Thanikavel, Dhanalakshmi-D1 and the plaintiff are class-I legal heirs of Thanikavel, as per the Hindu Succession Act. 9. A bare perusal of Ex.A1-the partition deed dated 7.2.94 would indicate and exemplify that ex facie and prima facie during the year 1994, Selvaraj got six acres of agricultural land and one tiled house towards his share as found specified in the C schedule of Ex.A1. 10. The whole kit and caboodle of facts and figures placed before me does not in any way display and demonstrate, project and portray as to what happened to Ex.A1 properties. 11. From the evidence what one could understand is that allegedly those properties referred to in Ex.A1 were sold. It is not known as to when those properties were sold and for what price; those facts remain a misty. 12. The onus probandi, no doubt is on the plaintiff generally. 13. At this juncture, my mind is reminiscent and redolent of the following maxims: (i)Affirmatis est probare – He who affirms must prove. (ii) Affirmanti, non neganti incumbit probatio – The burden of proof lies upon him who affirms, not upon one who denies. 14. It is the duty of the person who affirms a particular fact to prove it and he cannot call upon the other side to prove the negative aspect. However, in a partition suit, the plaintiff is the defendant and vice versa. 15. I recollect the popular legal adage that three types of persons should be zealouly and jealously safe-guarded, namely, (i) Widows, (ii) mentally challenged and (iii) minors. 16. I hark back to the following maxims: (i) Lex Seccunrrit ignoranti– The law assists the ignorant. (ii) Ignorantia Facti Excusat – Ignorance of fact excuses. But it should be noted that a mistake of fact may involve a misapprehension of legal rights. 16. I hark back to the following maxims: (i) Lex Seccunrrit ignoranti– The law assists the ignorant. (ii) Ignorantia Facti Excusat – Ignorance of fact excuses. But it should be noted that a mistake of fact may involve a misapprehension of legal rights. "It is said, Ignorantia juris haud excusat 17. As such, taking into consideration the position of the plaintiff being the widow, it could rightly be held that due to misconception of fact she could not instruct her advocate, which, as highlighted by the learned counsel for the plaintiff, resulted in the occurrence of certain factual mistakes and which resulted in misapplication of law and wrong adjudication of the lis. 18. It would not be out of context to refer to the following maxim: Ignorantia juris quod quisque scire tenetur neminem excusat – Ignorance of the law, which everyone is bound to know, excuses no one, and not merely and fruitlessly the maxim Ignorantia legis nemimem excusat. - Ignorance of law excuses no one. 19. Now the core question arises as to whether the plaintiff was expected to know the complicate provisions of the Hindu Law before instructing her advocate. 20. I am of the considered view that the Court cannot be so draconian and harsh and hold that under all circumstances there should be no excuse for a litigant to plead ignorance of some complicate provisions of law. As such, in this case, some amount of indulgence can rightly be shown towards the plaintiff for improving upon her pleadings and also in adducing evidence, in the interest of justice. 21. The concept blending ex facie and prima facie not specifically pleaded, but vaguely the averments in the plaint would usher in such a concept. There was scope for the Court to consider that aspect also, but it was not considered. 22. Indubitably and indisputably, Selvaraj was the Co-operative Sub-Registrar and earning. However, my above discussion supra would demonstrate and display that even in the year 1986, so to say, in the year of purchase of I & II items of the suit properties, as per Ex.B3, there might have been some likelihood of Selvaraj in receipt of income from his share in the ancestral properties referred to in Ex.A1; but absolutely there is no pleading and no evidence in that regard. The trial Court on being placed with the contents of Ex.A1 should have mulled over and excogitated on the point that there was apparently and axiomatically evidence pointing towards the existence of coparcenary status among Selvaraj and his two sons. The lower Court even though had occasion to ponder over that point, did not focus its attention at all. In this factual matrix, the trial Court was not helpless to give suitable directions also to parties to focus their attention on salient features. 23. As has been already highlighted supra, there is no clear cut evidence to prove that the sale proceeds of the ancestral properties referred to in Ex.A1-the partition deed, were exclusively given to the deceased Thanikavel-the husband of the plaintiff for him to set up business and that he allegedly incurred loss ultimately due to his conduct etc. There is nothing to presume that the sale proceeds of the ancestral properties did not get blended in improving the properties which were purchased under Ex.B3 and also in raising the structure on the porambokke land. In fact, precisely there is no evidence to prove as to when the house was built on the porambokke land referred to in item III of the suit properties. 24. The defendants candidly and categorically, without mincing words admitted in Ex.A5 that they were ready to share the house in item No.3, with the plaintiff, but the trial Court did not take note of it. As such, considering the pro et contra, I would like to hold that owing to certain misconception and ignorance of fact on the part of the plaintiff, she could not put forth her case properly. The punctilious of Court procedures and technicalities of adjective law should not be applied or bulldozed into indiscriminately in deciding a case without having any regard for realities and also equities. As such, I am of the considered view that this is a fit case for being remanded as it is a fortiori case of it. 25. It is ex facie and prima facie clear that the trial Court without au fait with law and au courant with facts threw the baby along with bath water. As such, I am of the considered view that this is a fit case for being remanded as it is a fortiori case of it. 25. It is ex facie and prima facie clear that the trial Court without au fait with law and au courant with facts threw the baby along with bath water. Hence, the judgement and decree of the trial Court is set aside and the matter is remitted back to the trial Court, so as to enable the plaintiff to get the plaint amended suitably and also adduce additional evidence. The defendants are also given the liberty to file additional pleadings as well as adduce additional evidence in support of their case. The trial Court shall make endeavours to see that the matter is disposed of within six months from the date of receipt of a copy of this order untrammeled and uninfluenced by any of the observations made by this Court in this judgement. The parties shall appear before the trial Court on 14.2.2012. 26. The learned counsel for the appellant/plaintiff would make an extempore submission that despite injunction order in vogue, the defendants sold some portion of the suit properties and pending the litigation, if the suit properties are sold, then it will lead to multiplicity of proceedings and discomfiture. Wherefore, I would like to mandate that let there be no encumbrance or alienation of the suit properties pending disposal of the suit by the trial Court. 27. The appeal is disposed of accordingly. However, there is no order as to costs.