R SRIDHARAN Vs. AMMANIAMMAL

JUDGEMENT

(1.) THE appeal is preferred against the judgment and decree dated 19. 12. 1988 made in O. S. No. 68 of 1982 on the file of the Court of Subordinate judge, Coimbatore. The appellants herein are the plaintiffs in the suit.

(2.) THE appellants filed the suit seeking for a decree for cancellation of registered sale deed dated 11. 5. 1972 executed by the defendants 1 and 2 to the extent of the plaintiffs 9/16 th share value and for partition of the suit properties into sixteen equal shares and allot nine shares to the plaintiffs and for costs. The case of the plaintiffs is that they are the sons of first defendant who as kartha of joint family was looking after the ancestral lands measuring a total extent of 13 acres and 28 cents in two villages and the lands were fertile yielding a net income of more than Rs. 15,000/- per year which was sufficient for maintaining the family and the first defendant was leading a wayward, immoral life and did not look after the cultivation properly and the lands were leased to third defendant for annual lease amount of Rs. 5,000/- in the year 1972 and he had not paid the lease amount from the year 1978 and later the plaintiffs were told that the lands have been purchased by the third defendant by sale deed dated 11. 5. 1972 for a sum of rs. 65,000/- from the defendants 1 and 2. According to the plaintiffs, the first defendant in collusion with the second defendant had created a sham and nominal document to get illegal gain and collusively executed the sale deed for paltry sum of Rs. 65,000/- in detriment to the legitimate rights and interest of the plaintiffs and the first defendant's father died in the month of Chittarai in 1956 prior to the coming into force of Hindu Succession Act and the joint family properties were shared only by the first defendant and his three sons namely, the plaintiffs and the second defendant had no share in the suit properties and the first defendant died on 17. 11. 1987 during the pendency of the suit and his widow and two daughters are added as defendants 4 to 6 and no relief is claimed against them. The further case of the plaintiffs is that the sale deed was not supported by consideration and there was no legal necessity to alienate the suit lands and both the first and third defendants were aware even at the time of sale that no valuable property could be acquired for a sum of Rs. 25,000/- for the minor sons at that time. The retention of such a sum itself is a hoax calculated to lend legitimacy to the transaction which was otherwise and the third defendant is not paying any interest on the sum retained by him for the benefit of minors and for acquisition of property for the past many years and the alienation made by the defendants 1 and 2 could only bind their 7/16th share in the suit properties and not 9/16th share belonging to the plaintiffs and liable to be cancelled in respect of plaintiffs share and partition has to be effected. Hence the suit.

(3.) THE second defendant in her written statement as well as additional written statement has denied the averments in the plaint and has stated that the father of the defendants 1 and 2 viz. , Rengappa Naidu died on 4. 5. 1956 and on that date, the succession to his estate was governed by the provisions of Central Act 18 of 1937 and his heirs include the widow Ellammal and she died on 11. 12. 1968 and succession to her estate was governed by central Act 30 of 1956 and the second defendant was also a Class I heir, entitled to 1/4th share and the plaintiffs are not entitled to question the sale by the second defendant of her share in the properties and the third defendant was never a lessee of the suit properties and the alienation was made for binding debts and the price paid was fair.