PREMA Vs. MANIVANNAN

JUDGEMENT

(1.) This appeal is preferred challenging plaintiffs' suit for partition of their alleged ? share in the suit property. Parties would be referred to by their rank before the trial Court.

(2.) The plaint with its jerky narration of facts may be concisely stated: There are two items of suit properties, the 1st item measuring 1.08 acres in S.No.75 of Periyaputheri village, and the 2nd item measures 0.67 acres in S.No.26/2 of Reddykuppam Village, both in Chengalpattu Taluk. These properties are wet agricultural lands and were the ancestral properties in the hands of one Krishtappa Naicker. His wife was Savithri Ammal. Krishtappa Naicker purchased the 1st item of property in 1966 in favour of his wife Savithri Ammal, and she was chiefly a name-lender. The 2nd item of property was purchased by Savithri Ammal herself on 05.08.1971. By then, Krishtappa Naicker had already died. Savithri Ammal died subsequently on 23-10-1991. Krishtappa Naicker and Savithri Ammal had five children of who Mohan, Giridhar and Manivannan are their three sons, and Ambika and Easwari are their daughters. Mohan died on 06.04.1990 and his wife is the first plaintiff. Giridhar died on 07.05.1995 leaving behind him surviving his minor son, the 2nd plaintiff in the suit. Manivannan is the 1st defendant. During the lifetime of Savithri Ammal, both Ambika and Easwari were provided with other properties and the suit properties were allotted to her male children. On the demise of Savithri Ammal, the entire suit properties came to be jointly enjoyed by the plaintiffs and 1st defendant and that the plaintiffs are jointly entitled to ? shares. Be that as it may, the 1st defendant has been cultivating the suit properties but all the sharers used to participate in the agriculture income till 2003. However, it appears that the 1st defendant had entered into some agreement with the 2nd defendant, without the knowledge or consent of the plaintiffs, and not for any family necessity. The 2nd defendant has no right in the suit property and cannot claim any title affecting the right of the plaintiffs. Hence, in Jan. 2003, the plaintiffs demanded partition. Earlier, at the instance of the plaintiffs, a suit notice dated 15.3.1994 was served on the 1st defendant demanding partition, and yet another notice dated 10.01.2006 was issued for the same purpose. As there was no positive response to any of these notices, this suit came to be laid.

(3.) The 1st defendant remained exparte, and only the 2nd defendant contested the suit. Denying the allegation that Krishtappa Naicker had purchased the 1st item property in the name of his wife, benami, it is alleged that both the items of suit properties belonged to Savithri Ammal. The properties had never been ancestral properties. At no point of time the properties have devolved on the plaintiffs nor have they been enjoying them. Be that as it may, on 27.5.1996, Ambika and Easwari both daughters of Savithri Ammal, and sisters of the 1st defendant had executed separate release deeds as regards their ? share in the suit property in favour of the 1st defendant. Based on that, on 02.06.2003, the 1st defendant had sold both the items of suit properties for a total consideration of Rs. 2,40,000.00. This defendant is a bonafide purchaser for value without notice of any claim as is now set up by the plaintiffs. Since the date of sale the second defendant has been in absolute and exclusive possession of the suit property. It is relevant to state that in Jan., 1992, Giridhar, one of the son's of Savithri Ammal had demanded partition of the property and this was rejected by the 1st defendant as well as by his two sisters Easwari and Ambika. Thus, from 1992 onwards, Giridhar has been excluded from the enjoyment of the suit property. So far as the 1st plaintiff is concerned, inasmuch as her husband Mohan had pre-deceased his mother, the 1st plaintiff is not legally entitled to any share. The allegation that the plaintiffs had demanded partition in Jan., 2003 is false. So far as the suit notices demanding partition dated 15.3.1994 and 10.01.2006 are concerned, this defendant does not remember to have received them. In this regard, it is pertinent to state that in the first of the notices dated 15.3.1994, the plaintiffs have included another property in S.No.18 in Reddikuppam Village, but this is seen omitted in the plaint. Hence, the suit is bad for partial partition. At any rate, Ambika and Easwari are necessary parties to the proceedings and the suit is bad for non-joinder of necessary parties. The suit is under valued.