JUDGMENT :

(Prayer: Second Appeal filed under Section 100 of C.P.C., to set aside the judgment and decree of the learned Sub Judge, Cheyyar, dated 22.11.2013 in A.S.No.27 of 2012, confirming the judgment and decree of the learned Principal District Munsif, Cheyyar, dated 11.07.2012 in O.S.No.153 of 2008.)

1. The 4th defendant who suffered a decree for partition and separate possession of the plaintiff's 1/3rd share in the 'B' Schedule Property in O.S.No.153 of 2011, on its confirmation in A.S.No.27 of 2012 has come forward with this appeal.

2. The suit was laid by the plaintiff claiming that the suit B Schedule properties were ancestral properties having been allotted to his father, 2nd defendant namely Murugesan at a partition that took place between Kiliyappa Naicker, Ganesan, the 1st defendant and Murugesan, the 2nd defendant on 19.02.1988. Therefore, being the property allotted to a coparcener at the partition, the same will be held by him as coparcernary property and his children would acquire a right by birth. Thus, the plaintiff would claim 1/3rd share in the property. The 2nd defendant had sold the property to the 4th defendant on 21.12.1992. Hence, the 4th defendant was also made a party to the suit. As regards 'A' Schedule property, it was the case of the plaintiff that the same was allotted to Kiliyappa naicker and on his death, it devolved on his heirs. Therefore, he is entitled to 1/6th share in the suit 'A' Schedule property.

3. Expectedly, the defendants 1 to 3 who are the paternal uncle, father and brother of the plaintiff remained exparte. The 4th defendant purchaser contested the suit contending that the suit is not maintainable. It was also claimed that the suit is barred by limitation. While admitting the fact that the suit 'B' Schedule Property was allotted to the 2nd defendant at the partition Deed dated 19.02.1988, the 4th defendant would contend that the suit filed after a lapse of three years from the date on which the plaintiff attained majority is barred by limitation.

4. The Courts below held that the sale by the 2nd defendant without permission of the Court is void, as he sought to convey the interest of the minors in coparcenary property. The Courts below also rejected the plea of the 4th defendant on limitation on the ground that the plaintiff has not sought for setting aside the sale and therefore, the suit is not barred by limitation. On the above findings, the Courts below had granted a decree with reference to 'B' Schedule Property in favour of the plaintiff, declaring 1/3rd share to the plaintiff.

5. Aggrieved, the 4th defendant is on appeal.

6. I have heard Mr.S.Parthasarathy, learned Senior Counsel for appellant and Mr.A.Tamilvanan, learned counsel for 1st respondent/plaintiff and Mr.S.Mahesh, learned counsel for 2nd respondent. Respondents 3 and 4 though served, they are not appearing either in person or through counsel.

7. The following questions of law were framed at the time of admission:

1. Whether the concurrent finding of both the Courts below that Ex.B5 sale deed not binding on the respondents is valid?

2. When Article 60 of the Limitation Act, 1963 mandates a minor to set aside the sale within 3 years on attaining majority, whether the Judgment and Decree of the Courts below in over riding the provisions of the Limitation Act is sustainable in law?

3. When it is settled proposition of law that with respect to joint family property, the Section 8 (2) of Hindu Minority and Guardianship Act is not applicable, whether the Judgment and Decree of the Courts below mandating the permission of the Court is right in law?

8. Upon hearing the counsels, the following additional question of law is framed:

Whether the suit framed without seeking to set aside the Sale Deed dated 21.12.1992 is maintainable?

9. I have heard the counsel on the question of law framed above.

10. Mr.S.Parthasarathy, the learned Senior Counsel appearing for the appellant would contend that in view of the decision of the Full Bench of