P SUNDARAM Vs. G RAMASWAMY

JUDGEMENT

(1.) The third defendant is the petitioner herein challenging the order of dismissal passed in I.A.No.259 of 2014 filed under Order VII Rule 11 C.P.C.

(2.) The suit is filed by the plaintiffs for partition. According to the petitioner, there is no cause of action for filing the suit, which is also bad for non-joinder of necessary parties and hence, prayed for rejection of the plaint. For better appreciation of the facts, the relationship of the parties are relevant. One Rangappa Naidu was the owner of the properties, who had four sons and two daughters. There was a partition in 1997 between them. One of the sons is Ponnusamy Naidu. He had three sons and a daughter. The daughter's children are the plaintiffs and the children of two of the sons are the defendants. Admittedly, the said Ponnusamy Naidu and his children constituted a joint Hindu family and in possession of the properties that were allotted to the said Ponnusamy Naidu in the family partition between him and his brothers. Therefore, the plaintiffs have filed the suit claiming 1/4th share in the suit property being the children of the deceased daughter. The third defendant has contended that there is no cause of action for filing the suit, as the litigation between the various parties to the original partition that took place in the year 1977, was settled, on the basis of the written statement filed by the father of the first and second defendants in O.S.No.859 of 1979. The respondents had suppressed all the material facts. Hence, the above application was filed.

(3.) According to the third defendant, at the time of such oral partition, the daughter Amirtham was not a co-parcener, as she had died in the year 1980 itself. So, the said Amirtham cannot have any right in the suit properties. Hence, the children cannot now maintain the suit property. On the contrary, the plaintiffs have contended that the said Rangappa Naidu died intestate in the year 1954 and after his death, the suit schedule properties were allotted to the said Ponnusamy Naidu, Son of Rangapa Naidu. The said Ponnusamy Naidu had three sons and a daughter. One son, namely, Kannappa Naidu died leaving behind the defendants 1 and 2 and another son Sundaram, the third defendant/petitioner herein. The last son is one Soundara Rajan who died leaving behind the fourth defendant as legal heir. The plaintiffs are the legal heirs of the daughter Amirthan. The said Ponnusamy Naidu and his children constituted a joint Hindu family of the properties, which were alloted to Ponnusamy Naidu in the family partition between him and his brothers. As in the hands of the said Ponnusamy Naidu, the properties were separate, the plaintiffs have claimed 1/4th share in the suit property. It is also stated that there was a suit for partition in the year 1990 in O.S.No.182 of 1990 on the file of the I Additional Sub Court, Coimbatore, without adding the plaintiffs herein as parties. I.A.No.851 of 2017 filed to implead the defendants, was later not pressed and the defendants being the parties to the proceedings, had deliberately failed to allot a share to the second and third plaintiffs, who are legally entitled for the same. As the heirs of the said Amirtham were not parties to the said suit, the same is not binding on them. The trial Court, after considering the facts and submissions, had dismissed the application.