KARPAGAM AND ORS. Vs. VELLACHI AND ORS.

JUDGEMENT

(1.) This Civil Revision Petition is filed to set aside the fair and decretal order dated 28.11.2011 made in I.A.No.195 of 2011 in O.S.No.26 of 2010 on the file of the I Additional Subordinate Court, Villupuram.

(2.) The petitioners are the plaintiffs, respondents 1 and 2 are the third parties and respondents 3 to 7 are the defendants in O.S.No.26 of 2010 on the file of the I Additional Subordinate Court, Villupuram. The petitioners filed the said suit for partition of the suit property and for permanent injunction restraining the respondents 3 to 7 from alienating or encumbering the suit properties. The 4th respondent filed written statement and is contesting the suit. The respondents 3 to 5 in the written statement have stated that the petitioners have not impleaded necessary and proper party in the suit. The respondents 1 and 2 filed I.A.No.195 of 2011 under Order 1, Rule 10 of C.P.C to implead them as defendants 6 and 7 in the suit. The first defendant / third respondent is wife of their brother Elumalai Udaiyar. Other defendants and plaintiffs are their brother's children. The suit properties are joint family properties of Nallathambi Udaiyar, consisting the petitioners, their deceased brother and their father. The petitioners along with respondents 3 to 7 colluded together and filed suit without impleading the respondents 1 and 2. They have right in the suit properties as coparcenors along with their brothers and father. They are proper and necessary parties in the suit and filed the present application to implead them as defendants 6 and 7.

(3.) The first petitioner filed counter affidavit and contended that the respondents 1 and 2 got married 40 years before the State amendment to the Hindu Succession Act in the year 1989. There was a partition on 05.08.1988 itself between the Nallathambi Udaiyar and his sons Elumalai Udaiyar and Mannu Udaiyar. The petitioners are very well aware of the said partition dated 05.08.1988. At that time, they have not raised any objection and therefore, they are estopped from claiming any right as per Hindu Succession Act. Even as per the State and Central amendment to the Hindu Succession Act, they are not necessary parties. The daughters are entitled to share in family properties only if they got married after the said amendment. Hence, the petitioners are not entitled to any share in the suit properties and they are not necessary parties to the suit. As the partition effected between the Nallathambi Udaiyar and his sons Elumalai Udaiyar and Mannu Udaiyar on 05.08.1988 itself, the State and Central amendment to Hindu Succession Act are not applicable to the respondent 1 and 2. Nallathambi Udaiyar died in the year 1996 itself. The respondents 1 and 2 have not claimed any share in the properties for more than 14 years. Therefore, the claim of share in the suit properties is barred by limitation and petitioners denied that the respondents 1 and 2 are in joint possession of the suit properties along with their father and brothers.