G.K. PALANISAMY PROPRIETOR Vs. AMUDHAVENI

JUDGEMENT

(1.) The 2nd Defendant in OS.No.69 of 2004 and who is also the plaintiff in OS.No.249 of 2004 is the appellant. The suit in OS.No.69 of 2004 was filed by the 1st respondent seeking partition and separate possession of her half share in the suit properties and for permanent injunction.

(2.) The plaintiff is the daughter of the 1st defendant. The suit properties belonged to Pongianna Gounder, father of the 1st defendant. The said Pongianna Gounder had 3 sons by name Kandhasamy, Possappan and K.P.Chinnasamy (1st Defendant). The plaintiff claims that the suit property was alloted to Pongianna Gounder under a compromise final decree dated 09.09.1977 made in OS.No.501 of 1974. After the said compromise final decree, the father of the plaintiff namely 1st Defendant in OS.No.69 of 2004 entered into an agreement of sale with his father on 16.09.1978 to purchase the suit property for a sum of Rs. 35,000/- and had paid an advance of Rs. 20,000/-. Since the father Pongianna Gounder died without executing the sale deed, the 1st defendant namely K.P.Chinnasamy filed a suit in OS.No.288 of 1979 seeking specific performance. The said suit was decreed on 07.11.1991. Pursuant to the said decree a sale deed was executed on 16.04.1993 by the learned Subordinate Judge and the possession was also taken by the decree holder namely the 1st defendant. Thereafter, the 1st defendant had sold the property to the second defendant/appellant under a sale deed dated 21.11.1996. The plaintiff claimed that the said sale deed will not be binding on her and inasmuch as the suit property was purchased by the first defendant from and out of the income from the joint family property, and she being a co-parcener by virtue of the introduction of the Hindu Succession (Tamil Nadu Amendment) Act, 1989 (Act 1 of 1990), she would be entitled to a half share in the suit property. The sum and substance of the case of the plaintiff is that the suit property was acquired by her father, the 1st defendant from and out of the ancestral nucleus and hence, she is entitled to half share in the suit property. The 1st defendant remained ex-parte.

(3.) The suit was resisted by the second defendant, contending that the suit property is not a joint family property. According to him the suit property is self acquired and separate property of the first defendant who is a well known real estate broker. The second defendant would further contend that the plaintiff being a party to the suit for specific performance in OS.No.288 of 1979 filed by the first defendant is estopped from now contending that the suit property was purchased by the first defendant out of the joint family nucleus. It is also contended that the suit itself has been brought in collusion with the first defendant who is notorious court bird. An additional written statement was also filed claiming that the suit is barred by res-judicata.