The validity of an alienation by a limited owner, the requirement of legal necessity for such alienation, and the applicability of the Hindu Succession Act, 1956 and Hindu Women Right Property Act 1937.

JUDGMENT :

R. Kalaimathi, J.

[PRAYER: Appeal is filed under Section 96 of C.P.C., r/w. Order 41 Rules 1 and 2 of Civil Procedure Code against the Judgment and Decree made in O.S.No.2 of 2008 dated 04.02.2011 by the Additional District and Sessions Court / Fast Track Court, Vellore.]

The defendants No.3 to 9 in O.S.No.2 of 2008 have preferred this appeal against the judgment and decree passed in O.S.No.2 of 2008 on the file of the Additional District Court, Vellore on 04.02.2011.

2. The grand children of Tmt.Amaravathi Sadakaran, namely Rajendran and Sampath (sons of Chinnakuzhandai Gounder) had filed the suit in O.S.No.2 of 2008 for partition of 1/3rd share in the suit properties and for possession.

3. The defendants are the legal heirs of Veerabathiran and Perumal who are the brothers of Sadakaran @ Ponnusamy Gounder.

4. According to the plaintiffs, the suit properties originally belonged to one Thanjan Gounder and his wife Ponnammal. Out of 5 items shown in the plaint, the 1st item was purchased by the said Thanjan Gounder by way of registered sale deed dated 22.12.1909. The 2nd item was purchased by the said Thanjan Gounder by way of registered sale deed dated 12.10.1911. The 3rd item of suit property was purchased by the said Tmt.Ponnammal Thanjan by way of registered sale deed dated 22.03.1906. Thanjan sold the 1st and 2nd item of suit properties to one Perumal Gounder on 25.05.1915. The said Perumal Gounder executed a registered sale deed in favour of Veerabathira Gounder, father of the 1st defendant and Sadakaran @ Ponnusamy Gounder by way of registered sale deed on 02.12.1916. The said Perumal Gounder sold the 1st and 2nd items of suit properties which he purchased from Thanjan Gounder along with his property to an extent of 4.32 acres. After the demise of the said Thanjan Gounder, his wife Ponnammal and his children namely one Perumal, Veerabathira Gounder and Sadakaran @ Ponnusamy Gounder were in possession and enjoyment of the suit property jointly by constituting undivided Hindu Joint Family. After the demise of Sadakaran @ Ponnusamy Gounder, grand father of the plaintiffs, his wife Amaravathi Ammal, to eke out her livelihood, she migrated her family consisting of her children namely Perumal, Chinnakuzhandai Gounder, Thanjammal and Ponnammal to her mother's house at Annasipalayam. The above said Perumal died when he was 7 years old. Thanjiammal and Ponnammal died issueless. Therefore, the plaintiffs who are the children of Chinnakuzhandai Gounder and grand children of Sadakaran @ Ponnusamy Gounder are entitled to 1/3rd share in the suit property.

5. Contending contra, the 2nd defendant claims that the plaintiffs are not entitled to any share in the suit properties, since the grand mother of the plaintiffs namely Amaravathi Ammal, after demise of her husband Sadakaran @ Ponnusamy Gounder, sold her husband's property to Perumal who is the grand father of the 2nd defendant, that he got in the family partition long ago in the year 1937 itself and left the village along with her minor son Chinnakuzhndai Gounder @ Arunachalam in the year 1937 itself. From the date of his purchase, the said Perumal and after his demise, his son Japan @ Ponnusamy, the father of the 2nd defendant had been in possession and enjoyment of his properties till his death and after his demise, the 2nd defendant alone is in possession and enjoyment of his properties.

6. Whereas the suit was resisted by the defendants 3, 6 in a similar line as contended by the 2nd defendant.

7. At trial, the 2nd plaintiff Tr.Sampath was examined as PW1 and one Tr.Ramamoorthy was examined as PW2 and Exs.A1 to A12 were marked. Whereas on the side of the defendants, the 3rd defendant Tr.Murugesan and 5th defendant Tr.Rajavel were examined as DW1 and DW2. Exs.B1 to B37 were marked. The registration copy of the sale deed dated 08.12.1937 executed by Amaravathi Ammal, wife of Sadakaran @ Ponnusamy Gounder in favour of Perumal Gounder in respect of the suit properties is Ex.B1. Pat