The court emphasized that the points raised by the defendant did not meet the criteria for rejection of the plaint under Order 7 Rule 11 of C.P.C.

JUDGMENT :

(Prayer: Petition filed under Article 227 of Constitution of India, praying to set aside the fair and decreetal order made in I.A.No.105 of 2020 in O.S.No.238 of 2016 dated 12.08.2020 on the file of the IIIrd Additional District and Sessions Judge, Tiruppur at Dharapuram.)

1. The 14th defendant in the suit is the revision petitioner herein.

2. the Brief facts of this petition is as follows:-

(a) The first respondent/plaintiff has filed a suit seeking the relief of partition of the suit property and claiming 1/2 share in the schedule property.

(b) The first defendant is the mother of the deceased K.R.Dinesh. While the 14th defendant is the elder brother of the said Dinesh and also the first son of the father Ramalingam (now deceased).

(c) Written statement of the first defendant and 14th defendant have filed and other defendants are being the tenants have been exonerated by the orders of the trial Court in the Interlocutory Application.

(d) After framing necessary issues, P.W.1 was examined and documents were marked.

(e) At this juncture, the 14th defendant has filed I.A.No.105/2020 under Order 7 Rule 11 read with 151of C.P.C for rejection of the plaint.

(f) The plaintiff/respondent filed counter in the said I.A, and after enquiry, by an order dated 12.08.2020, the learned IIIrd Additional District and Sessions Judge, Tiruppur at Dharapuram has rejected the application and hence, the present revision.

3. Heard the learned counsel for the petitioner and the respondents.

4. The learned counsel for the petitioner/14th defendant could contend that duplicate copy of the plaint was not enclosed and the cause of action was not properly pleaded and there is deficiency in payment of Court Fee and suit claim is barred on legal principle. Since the suit property is H.U.F property without consent of the another coparcenar, a settlement has been executed by one of the co-owner in favour of the other co-owner and hence the same is null and void.

5. Per contra, the learned counsel for the respondent/plaintiff has made submissions in support of the order passed by the trial Court inter-alia contended that the points raised by the defendants are purely in nature of facts regarding which evidence is necessary and further submitted that the plaintiff is the legally wedded wife of the said Dinesh and his mother is the first defendant Yasodha Ramalingam and the petitioner/14th defendant being brother of deceased is not entitled any share in the property. As the property stands in the name of her deceased husband, on his death the wife and the mother alone are entitled to whose property and the 14th defendant being the brother is not entitled any share and he is not even a necessary part to this partition suit.

6. On perusal of the plaint averment, I find that the 1st respondent/plaintiff claims to be the legally wedded wife of K.R.Dinesh and their marriage took place on 03.06.2013 as per Hindu Religious Caste Customs and they lived together husband and wife. The 1st defendant is his mother. The suit properties are the absolute properties of her husband K.R.Dinesh by virtue of under two registered Settlement Deeds dated 28.03.2014 and 23.06.2014. He was in exclusive possession and enjoyment of the suit property as its absolute owner till his death Registration copies of two Settlement Deeds are filed as plaint document No.1.

7. The plaint further proceeds to the effect that the plaintiff’s husband K.R.Dinesh died intestate in a car accident happened on 22.04.2016 leaving behind him, his wife Malathi (the plaintiff herein) and his mother (1st defendant herein) as his legal heirs. The said K.R.Dinesh is not having any issues and hence under law the plaintiff and 1st defendant are the only his legal heirs and the plaintiff and 1st defendant are each having half share in the suit properties.

8. As per plaint averments the plaintiff and the 1st defendant are in joint possession and enjoyment of the suit property. Hence, the suit is valid for the purpose of