NATANASABAPATHI Vs. JOSEPH ANTONIE

JUDGEMENT

(1.) THE Second Appeal is filed by the defendant against the judgment and decree dated 31.10.1997 in A.S.No.43 of 1996 on the file of the Additional Sub Judge at Pondicherry, confirming the Judgment and Decree dated 20.11.1986 made in O.S. No. 404/1985 on the file of the IIIrd Additional District Munsif, Pondicherry.

(2.) THE averments made in the plaint are as follows: THE suit property originally belonged to one Philip Diagou. He bequeathed the property in favour of plaintiff's father Joseph Xavier Aroquiasamy and gave life estate. THE absolute right of the property vested upon to plaintiff and his two brothers, equally. THE father of the plaintiff, Joseph Xavier Aroquiasamy without any manner of right, alienated the plaintiff's rightful share to the defendant. THE plaintiff's father had sold the plaintiff's 1/3 share without permission from the Court of law, as a guardian of the minor plaintiff. So, the sale deed in favour of the defendant in respect of plaintiff's share is void ab initio. THE plaintiff and other two brothers, Philip Immanuel and Joseph Arul nathan are the executants along with their father. THE plaintiff is a native christian and the personal Law that prevails for christians under Contractual Law of land alone is applicable. THE plaintiff was aware of the said sale after the death of his father on 26.07.1983 and thereafter, he issued a legal notice to the defendant on 06.08.1984. But, he has not received any reply. So, the suit is not barred by limitation. Hence, he is entitled to 1/3 share in the property. He is constrained to file the suit for setting aside the sale deed dated 25.02.1970 as void ab initio, directing the defendant to hand over possession of 1/3 share to the plaintiff in the alternative, the plaintiff must be compensated to the value of the property. Hence, he prayed for the decree.

(3.) THE Appellate Judge had framed three points for determination and after considering the arguments of both the counsels, he dismissed the appeal. Against that, the present Second Appeal has been preferred by the defendant.