M MOHAN Vs. P G SHANKARAMOORTHY

JUDGEMENT

(1.) This appeal is preferred by the unsuccessful plaintiffs in O.S.No.22 of 1977 on the file of the Court of the Subordinate Judge, Madurai, against the judgment and decree, dated 5th January, 1981, dismissing the said suit on the ground that the plaintiffs (appellants herein) have not paid the court-fee of Rs.750.50 till 31st December, 1980 as per the direction of the High Court made in C.R.P.No.2590 of 1978, dated 25th November, 1980.

(2.) The above suit was filed for partition and separate possession of the plaintiffs l/3rd share in the suit property by metes and bounds, for the consequential relief of permanent injunction restraining defendants 3 and 4 and their men from executing the order of eviction in respect of the suit property passed in their favour in R.C.O.P.No.622 of 1972, on the file of the First Additional Rent Controller of Madurai town and for recovery of future mesne profits from defendants 1 and 2.

(3.) The averments made in the plaint are as follows: The suit property was purchased as a vacant site in the name of the second defendant, by her husband late S.P.Curunathan Servai. The said Gurunathan Servai had two sons, viz., Mahalingam who thed on 15th September, 1973 and one Sankaramurthi, the first defendant herein. The 8th plaintiff is the widow of the abovesaid late Mahalingam. Plaintiffs 1 and 2 are the sons and plaintiffs 3 to 7 are the daughters, of Mahalingam through the 8th plaintiff. Gurunathan Servai put up a construction in the suit property from and out of his own funds and in the said building, carried on his business under the name and style of Sri Mahalingam Tile Works, for a long time. Mahalingam carried on business separately at Sathamangalam styled as Mohan Industries. Sankaramurthi (first defendant) carried on his own business at Othakadai, styled as Selvam Mosaic Industries. However, Gurunathan, Mahalingam and Sankarmurthi lived together as members of a joint family. Gurunathan closed his business due to some difficulties and leased out the main portion of the building to defendants 5 and 6 and another small portion to defendants 3 and 4 and utilised the rental income for the joint family. According to the plaintiffs, the second defendant had no separate funds to purchase the suit property, nor had she put up the construction over it. After the death of Gurunathan, defendants 1 and 2 and Mahalingam obtained a registered lease deed, dated 7th May, 1968 from the daughters of Gurunathan relinquishing their rights, title and interest in respect of the suit property in their favour in lieu of certain other properties already settled on them by "Gurunathan. Thus, the suit property had all along been treated as joint family property of late Gurunathan and even after his death the rent obtained from the suit property had been utilised by them. Thus, the suit property has become the ancestral property in the hands of defendants 1 and 2. Mahalingam, who had been indulging himself in illegal and immoral acts, squandered all cash and properties left behind by his father Gurunathan except the suit property. While so, the. first and the second defendants, with the ulterior motive, brought into existence sham and nominal registered sale deeds, dated 11th March, 1972 and 13th April, 1972 in respect of the suit property in favour defendants 3 and 4, who were close friends of the first defendant. Defendants 1 and 2 also obtained the signature of Mahalingam fraudulently when he was not in a sound and disposing state of mind. No consideration was received either by Mahalingam or by defendants 1 and 2. In fact, the sale deeds were never acted upon. The suit property continues to be the joint family property belonging to the plaintiffs and defendants 1 and 2 and thus the plaintiffs are in constructive possession of the suit property. The father of the plaintiffs, Mahalingam, was entitled to l/3rd share In the suit property as per the Hindu Succession Act. Plaintiffs 1 and 2 are each entitled to l/9th share in the suit property as co-owners. After the demise of Mahalingam, the plaintiffs are entitled to 173rd share in the suit property. During the alleged sales, plaintiffs 1 to 7 were minors. Mahalingam had no right to sell the 2/9th share belonging to plaintiffs 1 and 2 and hence the said sale is void ab initio. After the death of Mahalingam, the plaintiffs are the only legal heirs. The first defendant, after the death of Mahalingam, began to act adversely to the interest of the minors, plaintiffs 1 to 7. Hence the suit for partition lest the interest of the plaintiffs in the joint family property would be jeopardised.