D RAJMOHAN Vs. D PREMA

JUDGEMENT

(1.) (Civil revision petition filed under Article 227 praying to set aside the fair and decreetal order dated 28.12.2005 made in I.A.No.674 of 2005 in O.S.No.469 of 2004 on the file of the learned Additional District Court (Fast Track Court No.II), Coimbatore.) Aggrieved over the fair and decreetal order dated 28.12.2005 made in I.A.No.674 of 2005 in O.S.No.469 of 2004 on the file of the learned Additional District Court (Fast Track Court No.II), Coimbatore, the 7th defendant in the suit has filed the civil revision petition.

(2.) THE case in brief is as follows: Respondents 1 to 6 are brothers and sisters and the 7th respondent is the adopted son of deceased V.Janakiammal and K.Venkatesalu and son of the first respondent/plaintiff. THE first respondent has filed the suit O.S.No.469 of 2004 praying to pass a decree (a) declaring the marriage between the defendants 5 and 7 as null and void and not valid in law; (b) partitioning the suit properties described in the schedule of properties into seven equal shares and allot one such equal share to the plaintiff; c) appointing a Commissioner to divide the properties and for awarding the costs. THE seventh defendant has married fifth defendant. According to the plaintiff, the relationship between the fifth defendant and seventh defendant is within the prohibitory relationship and hence their marriage is null and void. THErefore, in the plaint, though it is a partition suit, a prayer is also made for a declaration, declaring the marriage between the defendants 5 and 7 as null and void and not valid in law.

(3.) MR. M.S.Krishnan, learned counsel for the petitioner/7th defendant would contend that in a suit for partition, the validity of a marriage between one of the sharers with a third party, has no relevance. Whether it is valid or null and void, is not going to affect the rights of the parties in a suit for partition. Learned counsel for the petitioner would point out Sections 7 and 8(a) of the Family Courts Act, which read as follows: