CHITRA GOBINATH Vs. DHANALAKSHMI

JUDGEMENT

(1.) THE judgment shall govern the two appeals Viz., OSA.Nos.259 and 280 of 2005.

(2.) THE Court heard the appellant in both the appeals.

(3.) LEARNED counsel for the appellant/plaintiff in OSA.No,259 of 2005 would contend that it is a case where the plaintiff should have been found to be a coparcener, since she was not married and even 28A of the Hindu Succession Act came into operation in the year 1989 and the sale transaction has taken place only in the year 1993. As per Section 29A of the Hindu Succession Act, if the partition has taken place in the year 1977, it will not stand in her way and she is entitled to a share and since she was a coparcener, learned Single Judge has recorded a finding that she was not a coparcener. The issues were not framed and parties were not given opportunity to put forth their contentions and hence the finding would operate against them in the suit. LEARNED counsel would further add that in the instant case, while the 5th defendant came forward to give an undertaking that he will not make alienation on the property pending trial, the learned Single Judge should have ordered interim direction restraining the respondents from making construction over the property. Under such circumstances, it is a fit case where the appeal has got to be ordered in favour of the appellant/plaintiff.