M VENKATACHALAPATHY Vs. C MUTHAPPAN

JUDGEMENT

(1.) THE Appeal Suit (First Appeal) arises out of the judgment and decree dated 25.8.2005 in O.S.No.352 of 2004 on the file of the Additional District Court (Fast Track Court No.2), Salem.

(2.) THE averments in the plaint are as follows: (a) THE suit properties are joint family properties of the plaintiffs and the second defendant. THE plaintiffs are the son and daughter of the second defendant. THE first plaintiff was born on 5.10.1982.THE second plaintiff was married to one M.Venkatachalam of Adaiyur on 22.5.1996 and so, she is a co-parcener as per the amended Tamil Nadu Act 1 of 1990 (THE Hindu Succession (Tamil Nadu Amendment) Act, 1989). (b) THE second defendant entered into a sale agreement of the suit properties with the first defendant on 24.12.1998 and agreed to sell the suit properties for a paltry sum of Rs.2 lakhs to the first defendant and on the date of agreement, the second defendant appears to have taken an advance amount of Rs.1,80,000/- from the first defendant and ten months had been granted for the performance of the contract. (c) Since the second defendant did not execute the sale deed, the suit had been filed in O.S.No.554 of1999 on the file of the Sub-Court, Mettur, in which, the first plaintiff herein was added as a defendant and since he was minor, he was represented by his father, the guardian, i.e. the second defendant herein. THE said suit was decreed on 13.3.2002. (d) THE second plaintiff is a co-parcener having 1/3 undivided share in the suit properties. In the said suit in O.S.No.554 of 1999, which was filed on 22.11.1999, the first plaintiff herein was described as a minor and the guardian of the minor was appointed by Sub-Court in I.A.No.703 of 1999 only on 20.10.2000, by the time the first plaintiff became major. During the trial of the said suit, the minor-first plaintiff herein was not declared as major and so, the decree is illegal. Since the first plaintiff herein was not represented in the said suit, the decree shall not bind him. (e) THE joint family properties cannot be alienated by the father without the consent of the other co-parceners and if he does so, such sale is void in law. Absolutely, there is no necessity for the second defendant to sell the only joint family properties to the first defendant for Rs.2 lakhs, especially, when the suit properties worth more than Rs.15 lakhs at the time of agreement. THE properties lie on the road side and even the guideline value fixed by the Government is more than Rs.6 lakhs. So, the whole decree is void and will not bind the plaintiffs at all to any extent. Since the Court has executed the sale deed for and on behalf of the second defendant and the first plaintiff as minor son, the decree is totally void and will not bind the plaintiffs. So, the plaintiffs are constrained to file the suit for partition in respect of 2/3 share in the suit properties. THEy prayed for a decree.

(3.) AFTER hearing the arguments of the learned counsel for the appellant/first plaintiff and the first respondent/D1, this Court frames the following points for determination in this First Appeal: (i) Whether the trial Court is correct in holding that the suit filed by the appellant/first plaintiff is not maintainable, without prayer to set aside the sale deed executed by Court in pursuance of the decree passed in O.S.No.554 of 1999 in favour of the first respondent/D1/purchaser" (ii) Whether the judgment and decree of the trial Court are sustainable" and (iii) To what relief the appellant/first plaintiff is entitled to"