JUDGMENT :

(Prayer: Second Appeal filed under Order 42 Rule 2 read with Section 100 of the Civil Procedure Code against the Judgment and Decree dated 08.11.2013 in AS No.70 of 2011 on the file of the Principal District Judge, Cuddalore District, Cuddalore by allowing the appeal and reversing the Judgment and Decree dated 30.08.2011 in OS.No.27 of 2008 on the file of the Sub-Court, Panruti and decreeing the suit for partition by preliminary decree.)

1. The defendants 3 and 4 in OS No.27 of 2008, who suffered a decree for partition and separate possession of the plaintiffs 3/4th share in the suit properties at the hands of the Lower Appellate Court in AS No.70 of 2011, have come up with this Second Appeal.

2. The suit in OS No.27 of 2008, out of which the appeal in AS No.70 of 2011 arose was filed by the respondents 1 to 3 herein/plaintiffs seeking partition and separate possession of their 3/4th share in the suit properties.

3. According to the plaintiffs, the suit properties are ancestral properties of the plaintiffs and their father/the first defendant. It is claimed that the suit properties and some other properties originally belonged to one Ranganatha Kounder, paternal grandfather of the plaintiffs. After the death of Ranganatha Kounder, his sons namely, the first defendant and his brothers effected an oral partition among themselves and the suit properties were allotted to the share of the first defendant at the said oral partition. It is also claimed that the plaintiffs and the first defendant have been in joint possession of the properties till date. It is the further claim of the plaintiffs that the first defendant got addicted to bad habits and hence he had appointed the second defendant his wife as his power agent. It is the further contention of the plaintiffs that the Power of Attorney executed by the first defendant in favour of the second defendant was cancelled under cancellation deed dated 06.10.2003 prior to the execution of the Sale deed in favour of the third defendant.

4. The first defendant through the second defendant as his power agent sold some of the properties that were allotted to the first defendant at the oral partition to the third defendant on 23.12.2003, who in turn sold the properties to the fourth defendant on 08.12.2006. Contending that the said sales would not bind the share of the plaintiffs, the plaintiffs have come up with the above suit for partition.

5. Expectedly, defendants 1 and 2, the parents of the plaintiffs remained ex-parte. The defendants 3 and 4 filed a written statement contending that there was neither a joint family nor were there any joint family properties. It was claimed that the suit properties belonged to the first defendant absolutely and his children namely, the plaintiffs did not get any right by birth, inasmuch as, Ranganatha Kounder grandfather of the plaintiffs died after 1956 and the properties of Ranganatha Kounder were inherited by his sons under Section 8 of the Hindu Succession Act and as such, they are the absolute properties of the sons of Ranganatha Kounder. As a subsidiary plea, it was claimed that the sale was in any event for family necessity and for the education of the minor children of the first defendant and therefore, the sales would bind the plaintiffs. It was also contended that the power agent had every right to execute the sale deed. It was further contended by the defendants that the cancellation of the power of attorney was not informed to the agent nor was there any publication as contemplated under Section 208 of the Indian Contract Act. Therefore, the sale by the second defendant would be valid and binding on the plaintiffs.

6. On a consideration of the evidence on record the Trial Court concluded that since the properties were admitted to be absolute properties of Ranganatha Kounder and Ranganatha Kounder having died after 1956, his properties would be inherited by his Class I heir, upon his death under Section 8 of the Hindu Succession Act. Th