During life time of father sons have no right to claim partition.

N.Kannadasan,J.

Defendants 3 and 4 who are the purchasers from Oubegaranadin (1st defendant), the father of the plaintiffs filed the above Appeals having aggrieved by the common judgment and decree of the learned single Judge in A.S.No.1052/1986 and 355/1987 and Cross Objection in A.S.No.1052/1986.

2. The property originally belonged to Maria Soosai Mudaliar who is the father of the 1st defendant, Oubegaranadin. Under Ex.B2, the said Mariyasoosai Mudaliar donated 'A' schedule property in favour of his grandsons, namely, plaintiffs, reserving the life interest for the first defendant and Simon, his another son. On 23.10.1953, Mariasoosai Mudaliar died. Thereafter the 1st defendant and his brother Simon divided the properties by a partition deed dated 9.4.1959 marked as Ex.A4. Pursuant to Ex.A1 Parivarthanai deed, the entire 'B' schedule house property came to the 1st defendant. Thereafter under Ex.A5 dated 15.3.1971, a partition was effected between the 1st defendant and his wife and the plaintiffs, his minor sons. The 1st defendant filed a suit in O.S.No.70/1974 impleading the plaintiffs represented by their mother, to declare that he is the absolute owner of the property in spite of the partition deed Ex.A5. In the order dated 24.6.1974 marked as Ex.A15, the suit was decreed, since the guardian submitted to the decree by filing a written statement stating that they have no objection to pass a decree as prayed for. Thereafter, the 1st defendant had executed an usufructuary mortgage in favour of defendants 3 and 4 under Ex.A10 dated 22.10.1979, with respect to 'B' schedule property.

3. Subsequently, under Ex.A14,dated 29.3.1980, the 1st defendant executed sale deed with respect to door No.76 and 76D in favour of defendants 3 and 4. Similarly, the 1st and 2nd plaintiffs and the 3rd plaintiff executed sale deeds under Exs.A11, A12 and A13 respectively selling the 'B' schedule property in favour of the 10th defendant. Thereafter, the plaintiffs filed O.P.No.3/1983, seeking permission for filing the suit informa pauperis and after getting permission, the said suit was renumbered as O.S.No.20/1987 on the file of the learned Principal Sub-Judge. The learned Principal Sub Judge found that the judgment and decree in O.S.No.70 of 1974 binds the plaintiff and so the sale in favour of defendants 3 and 4 cannot be set aside. With respect to the sale in favour of the 10th defendant, it is found that the said sale was effected to meet family debts and for the necessity of the minor plaintiffs. While considering the defence that the 1st defendant was leading immoral life and sold the properties for that purpose, the trial Court found that it is not established that the sale consideration was used for immoral purpose and to defeat the rights of the plaintiff. But,ultimately, to put an end to litigation and avoid anxiety to the defendants' purchasers about their heavy investment, the trial Court found that plaintiffs 1 to 3 are not entitled to the suit properties or for recovery of possession but they are entitled for compensation from defendants 3,4 and 10. The trial Court fixed a sum of Rs.9,000/- as compensation as against the appellants herein. Aggrieved against this judgment of the trial court, the plaintiffs preferred Appeal in A.S.No.1052/1986 and the 10th defendant preferred A.S.No.335/1987 and the appellants preferred Cross Objection in A.S.No.1052/1986. The learned Judge reversed the judgment and decree of the trial court and allowed A.S.Nos.1052/1986 and 335/1987. Though the learned Judge found that in view of the fact that the appeal preferred by the plaintiffs are allowed, defendants 4 and 5 are not liable to pay any compensation, ultimately, dismissed the Cross Objection. Aggrieved against the same, the appellants preferred the above appeals.

4. Learned Senior Counsel appearing for the appellant submitted that since both the Courts below have concurrently found that the 1st defendant is the absolute owner of the property