The central legal point established in the judgment is the validity of the plaintiff's coparcenary rights under the Hindu Succession Act and the necessity to consider rejection of plaint applications promptly.

M. Chockalingam,J

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. Appeal No.259 of 2005 is filed at the instance of the plaintiff, pursuant to the dismissal of an application for injunction to restrain the 5th defendant from making any construction in the suit property, while the other appeal in OSA.No.280 of 2005 is filed at the instance of the 5th defendant against the order of dismissal of application for rejection of the plaint.

4. Both these appeals have arisen under the following circumstances:

(a) The plaintiff who is the appellant in OSA.NO.259 of 2005 filed C.S.NO.503 of 2005 alleging that the first defendant is the mother, second and third defendants are the sisters and the fourth defendant is the brother of the plaintiff. The fifth defendant is the third party. The property belonged to Hindu Coparcenery and there was a partition in the year in the year 1977 in which the half of the property came to the hands of her father who died in the year 2005. He made an alienation of the property in the year 1993 by way of registered sale deed in favour of the 5th defendant by operation of law under Section 29A of the Hindu Succession Act which came into force in the year 1989. She became a coparcener, since was not married. Under such circumstances, the alienation was not in accordance with law. She has to be treated as a coparcener and the sale deed entered into by her father is only non-est in law. Therefore, the plaintiff is entitled to get half share in the property.

(b) The 5th defendant contested the suit. Pending suit, while application No.595 of 2005 was filed by the plaintiff to restrain the 5th defendant from making alienation in the property and Application No.596 of 2005 was filed to restrain him from making any construction over the property. While the matter stood thus, the 5th defendant/purchaser filed an application No.2578 of 2005 for rejection of plaint. All the applications were taken up by the learned Single Judge who has passed a common order whereby the Application No. 595 of 2005 was disposed of in view of the undertaking given by the 5th defendant not to make alienation and insofar as Application No.596 of 2005 is concerned, the learned Judge has dismissed the same. Equally, Application No.2578 of 2005 was also dismissed observing that the question of rejection of plaint can be decided leisurely at the time of trial. Under such circumstances, these appeals have arisen before this Court.

5. 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.

6. On the contrary, learned counsel for the 5th respondent who is the appellant in OSA.No.280 of 2005 would submit that after filing of the suit, 5th defendant entered appearance. He filed application in App.No.2578 of 2005 seeking rejection of plaint