S K JEYARHAAJ Vs. BABY ALIAS ROHINI

JUDGEMENT

(1.) Second Defendant in O.S. No. 269 of 2004 on the file of Fast Track Court I, Coimbatore is the revision Petitioner.

(2.) The revision Petitioner filed I.A. No. 323 of 2010 under Order VII Rule 11 of the Code of Civil Procedure to reject the plaint in O.S. No. 269 of 2004 and that application was dismissed and hence, the revision is filed.

(3.) It is submitted by the learned Senior Counsel Mr. M.S. Krishnan that Respondents 1 to 4 herein filed the above suit for partition and separate possession of the suit properties and the Plaintiffs, have no cause of action to file the suit and they have no right over the suit properties and therefore, the plaint is liable to be rejected. According to the learned Senior Counsel, the suit was filed by the Respondents for partition as if they are entitled to a share in the suit properties by virtue of the status viz., the children of the deceased Kumaresan through his second wife Chandra. Even according to the plaint, the mother of the Plaintiffs was the second wife and the properties were the ancestral properties in the hands of late Veeraboyan, who had three sons by name S.V. Subramaniam, S.V. Kumaresan and S.V. Viswanathan. The said Veeraboyan had executed a settlement deed on 21.5.1950 settling A schedule property to his first son S.V. Subramaniam, B Schedule property to his second son S.V. Kumaresan, C schedule property to his third son S.V. Viswanathan and the D schedule property to his two wives and the daughter Valliammal born through his first wife. As per the settlement, his sons and their wives are entitled to enjoy the properties allotted to them only during their lifetime and then the property will go to the male descendants after their life time. It is further stated in the plaint that the father of the Plaintiffs viz., S.V. Kumaresan was the only surviving son of Veeraboyan and he alone was entitled to the suit properties and as per the settlement deed, the male santhathis are entitled to enjoy the suit properties and as the mother of the Plaintiffs was not legally married to the said S.V. Kumaresan, the Plaintiffs will not come within the category of class I heirs to succeed to the estate of Veeraboyan as the property was ancestral in the hands of Veeraboyan. Therefore, the Plaintiffs cannot succeed to the suit properties and hence, they are not entitled to partition and therefore, the suit is liable to be struck off. In support of his contention, the learned Senior Counsel relied upon the following judgments: