Point of Law: Suit for partition – Minor - Right of avoidance based on the inequality of the shares is a personal right of the minors and cannot be exercised by others - Power is not a conditional power in the sense that if the condition of the partition being fair and equal is not satisfied, the power ceases to have operative force

JUDGMENT :

(Prayer: Second Appeal filed under Section 100 of C.P.C., against the judgment and decree of the Learned Additional Subordinate Judge, Salem dated 24.11.2006 made in A.S.No.138 of 2006 confirming the judgment ad decree of the learned I Additional District Munsif of Salem dated 01.08.2005 made in O.S.No.1816 of 2004.)

1. Challenge in this second appeal is made to the judgment and decree dated 24.11.2006 passed in A.S.No.138 of 2006 on the file of the Additional Subordinate Court, Salem, confirming the judgment and decree dated 01.08.2005 passed in O.S.No.1816 of 2004 on the file of the Additional District Munsif Court, Salem.

2. For the sake of convenience, the parties are referred to as per their rankings in the trial court.

3. The second defendant in O.S.No.1816 of 2004 is the appellant in this second appeal.

4. Suit for declaration and permanent injunction.

5. The case of the plaintiffs in brief is that the plaintiffs are entitled to the suit properties by virtue of the partition deed dated 06.03.1986 whereunder, the plaintiffs had been allotted the B and C schedule respectively and the patta also stands in the name of the plaintiffs independently and the plaintiffs are enjoying the suit properties by paying Kists etc., The suit properties belonged to the father of the plaintiffs, P.Ramasamy Chettiar and in the year 1948, P.Ramasamy Chettiar, his father and his brothers including the first defendant divided their family properties and on 13.03.1955, the first defendant and his brother by name Gnanam @ Gnana Sekaran executed a registered settlement deed in favour of P.Ramasamy Chettiar and delivered the possession on the same date and the settlement deed was acted upon and subsequently as above pointed out, in the family partition effected between P.Ramasamy Chettiar and his sons, the suit properties had been allotted to the plaintiffs. The defendants are strangers to the suit properties. The first defendant is the brother of the plaintiffs' father. The second defendant is the son of P.Sadhasivam Chettiar, the another brother of the plaintiffs' father. The defendants 3 and 4 are the sons of the second defendant. The first defendant and Sadhasivam Chettiar had divided their properties already in the year 1948 and Sadhasivam sold his share of the properties and enjoying the profits of the same along with his sons and grandsons. The first defendant is unmarried and he is under the beck and call of Sadhasivam Chettiar's family. After the settlement deed dated 13.03.1955, the first defendant ceased to have any right, interest or possession over the suit properties. Gnanam @ Gnana Sekaran died long back. At the instance of P.Sadhasivam, the first defendant has created a false document styling it as cancellation of settlement deed on 29.05.1993 in respect of the suit properties. In law, the settlement deed cannot be cancelled and in the guise of the abovesaid cancellation deed, the defendants attempted to interfere with the plaintiffs' possession and enjoyment of the suit properties. Pending suit, the first plaintiff died and his LR's had been brought on record as the plaintiffs 3 to 5. Pending suit, the first defendant also died and hence according to the plaintiffs, they had been necessitated to lay the suit against the defendants for appropriate reliefs.

6. The second defendant resisted the plaintiff's suit contending that the suit laid by the plaintiffs is not maintainable either in law or on facts and the suit for partition in O.S.No.466 of 1985 is pending on the file of the Additional Subordinate Court, Salem, in which the plaintiffs herein are the defendants 4 and 5 and the LRs of the first plaintiff had also been arrayed as the parties in the abovesaid suit. The plaint is silent about the abovesaid suit. The properties involved in O.S.No.466 of 1985 are unnecessarily included in the present suit. One Ponnusamy Chettiar had four sons, Sadhasivam, Ramasamy, Venkatraman, Gnanam @ Gnana Sekaran. The plaintiffs have no right,