P DEVENDIRAN Vs. P RAJENDRAN

JUDGEMENT

(1.) THE 1st defendant in O.S.No.59 of 2008 on the file of the Principal District Munsif Court, is the appellant.

(2.) THE 1st respondent/ plaintiff filed the suit for partition stating that the suit properties and other properties were the joint family properties of the plaintiff and 1st defendant who are brothers along with their father. On 28.11.1982 the plaintiff, 1st defendant and their father entered into a partition deed and divided the properties under the partition deed. The suit properties were allotted in favour of the parents to be enjoyed by them during their life time and thereafter the sons namely the plaintiff and 1st defendant shall take the property equally. Contrary to the terms of the partition deed, his father sold the property which was allotted in his favour to be enjoyed by him during his life time to the 1st defendant and on that basis the 1st defendant issued a notice stating that he has purchased the property and therefore he is the owner of the property. As the father had no right to alienate the property and he was permitted to enjoy the property, the sale by the father is not binding and therefore the suit was filed by the plaintiff/ 1st defendant for partition.

(3.) THE trial Court dismissed the suit holding that the suit is premature and relied upon the Judgement of the Supreme Court reported in 2007 (2) Law Weekly, 779 (M/s. Bay Berry Apartments Pvt. Ltd., and another v. Shbha and others). The first appellate Court reversed the findings of the trial Court and decreed the suit subject to the condition that only after the death of the 2nd defendant namely the mother, the preliminary decree passed would come into effect and thereafter the appellant/ plaintiff can apply for passing the final decree. This is challenged in the Second Appeal.