P.RUDHRA Vs. MALALEENA

JUDGEMENT

(1.) The plaintiffs in a suit for partition, aggrieved by an order rejecting their plaint at the instances of 3 defendant / purchaser of properties, have come up with this appeal.

(2.) The appellants herein filed a suit for partition against their father Palanivel, the mother Sivakami and respondent herein (purchaser from Palanivel) in O.S.No.108 of 2011 on the file of the Principal District Court, Namakkal. According to the plaint averments the suit properties were ancestral properties of their family. They averred that the same were originally belong to great grand father namely Varadappa Gounder and after his death, it was enjoyed by his only son namely Periya Gounder and after his death, it was enjoyed by their father Palanivel and brother Muthusamy. It was specifically averred that suit properties were ancestral properties and 1st defendant Palanivel, namely their father had no right to alienate the suit properties including the share of the plaintiffs as they acquired share by birth. It was averred that the 1st defendant in the suit namely their father Palanivel alienated the suit properties clandestinely on 1/12/2004 along with the 2nd defendant, his wife to the respondent herein (D3). It was observed that the said sale was not made by father of the appellants in the interest and welfare of appellants who were minors at that point of time. It was also averred that the sale was not for family necessity. On these pleadings, they prayed for partition of the suit properties into four equal shares and allotment of 3 shares to them.

(3.) The respondent herein who purchased the suit properties from the father and mother of appellants entered appearance and filed a petition for rejection of the plaint in I.A.No.458 of 2011. In the affidavit filed in support of petition filed for rejection of the plaint, it was averred by the respondent that suit properties were self acquired properties of great grand father of the appellants namely Varadappa Gounder as evidenced by recitals in plaint document No. 1 partition deed. It was further averred that in the said partition deed it was recited that said Varadappa Gounder and his brother Rangasamy Gounder acquired the suit properties jointly and it was partitioned between them. Hence, it was contended by the respondent that suit properties which were self acquired properties of great grand father of the appellants namely Varadappa Gounder remained as self acquired properties by operation of Sec. 8 of the Hindu Succession Act and hence suit for partition treating the suit properties as ancestral properties are untenable in the light of the plaint document No.1. It was further averred in the affidavit filed by the respondent that father of the appellants was their natural guardian and there is no need to get prior permission from the Court to sell minors interest in the joint family properties. It was averred that 1st defendant / father of the appellant had sold the suit properties for himself and also as kartha of the Hindu Joint Family and there is no need to get sanction from the Court for selling the suit properties. The respondent claimed that the plaint does not disclose any cause of action giving rise to a triable issue and hence it has to be rejected.