M V SACHIDANANDAM Vs. PRAKASH KUMAR

JUDGEMENT

(1.) SIXTH defendant in the suit is the revision petitioner in both the revisions, which are filed under Article 227 of the Constitution of India. The respondents 1 and 2 have filed the suit in O. S. No. 89 of 2003 for partition in respect of D Schedule property into 36 shares and to allot 5 shares to each of the plaintiffs, for mesne profits and injunction from alienating the D Schedule property to any person including the 6th defendant. The D Schedule property is the building and sight measuring East West 10 fts, North to South 40 fts. to the extent of 400 sq. ft. The business was started by the great grandfather of the family of plaintiffs in the name of Sri Krishna Stores, is one of joint family business even though it is called as partnership. The plaintiff's father the first defendant has been doing business till the second defendant stopped going to school. The second defendant was only assisting the business and was married to the third defendant Mrs. Sonal, who ailed from a poor family. The 4th and 5th defendants are paternal aunts of the plaintiffs. The plaintiffs father when demanded partition, the grandfather of the plaintiffs has sent him away, who has started a business in his own name as Kalpana Stores and thereafter he filed a suit for partition, that was in O. S. No. 142 of 1988. The said suit was decreed except in respect of item No. 4 in the A Schedule property and item No. 10 in B Schedule property. The grandfather of the plaintiff has entered an agreement of sale to purchase the shop No. 346 Kanchipuram, which is mentioned in the D Schedule. The said fact was omitted, to be included in the suit filed in O. S. No. 142 of 1988. The third defendant has no independent means to purchase the said property. The property was purchased in the name of third defendant, who is the second daughter-in-law of the family. She was only a student and poverty stricken. Therefore, according to the plaintiff even though the said Schedule D property was purchased in the name of the 3rd defendant it remains to be the property of the joint family. Even though the plaintiffs' father obtained a decree in the said partition suit and the second defendant has preferred an appeal, due to the reason that the first defendant is inactive, the second and third defendants are trying to alienate the suit properties.

(2.) IT is also stated that the said O. S. No. 142 of 1988 is pending on the appeal in the High Court in A. S. No. 987 of 1991 and the suit claim is restricted in the present suit only in respect of D Scheduled property. The 6th defendant has also filed a written statement in the suit. According to him he has purchased the D Schedule property from the 3rd defendant Mrs. Sonal under a registered sale deed dated 03. 02. 2003 at Kancheepuram Sub-Registrar Officer in document No. 243 of 2003. The said property was purchased by the 3rd defendant in the year 1988 out of her own funds in her name and under a registered sale deed dated 31. 10. 1988. According to him, the very fact that in the earlier suit in O. S. No. 142 of 1988 the said property was not included knowing that it is an individual property of the 3rd respondent Mrs. Sonal. The claim of the plaintiff in so far as it states that the said property was purchased in the name of the 3rd defendant benami is made invalid by the benami transaction (Prohibition) Act, 1988. The 6th defendant filed I. A. No. 399 of 2005 in O. S. No. 89 of 2003 to set aside the exparte order passed against him in O. S. No. 89 of 2003 dated 05. 04. 2005 and also another I. A. in I. A. No. 400 of 2005 to exclude the D Schedule property from the schedule of the suit.

(3.) ACCORDING to the 6th defendant, he purchased the vacant site of the C Schedule property from the 3rd defendant Mrs. Sonal and thereafter, he has modified the building to his convenience in which he is running Sree Ragavendra Readymade center and the purchase was in February 2003, while the suit in O. S. No. 89 of 2003 was filed only in August 2003 along with an application for interim injunction.