IMPORTANT POINT
The central legal point established in the judgment is the entitlement of co-parceners to ancestral properties and the validity of transactions involving such properties.

JUDGMENT :

G. ARUL MURUGAN, J.

Prayer: Second Appeal filed under Section 100 of the Civil Procedure Code against the judgment and decree dated 27.07.2023 passed in A.S. No. 50 of 2022 passed by the Additional District Judge, Krishnagiri, modifying the judgment and decree dated 06.04.2022 in O.S. No. 85 of 2016 passed by the learned Additional Subordinate Judge, Krishnagiri.

1. The defendants 1 to 4 are before this Court in this Second Appeal.

2. This Second Appeal is filed as against the judgment and decree dated 27.07.2023 passed in A.S. No. 50 of 2022 passed by the Additional District Judge, Krishnagiri, modifying the judgment and decree dated 06.04.2022 in O.S. No. 85 of 2016 passed by the learned Additional Subordinate Judge, Krishnagiri.

3. For the sake of convenience, the parties will be referred to as per their ranking as before the Trial Court.

4. The brief facts, which gave rise to this Second Appeal, are as follow:

According to the plaintiffs, the suit properties and several other properties were ancestral joint family properties of one Vediappan along with his two sons viz. Madhu and Balan, and they were in joint possession of the same. Vediappan died 23 years ago leaving behind his wife Lakshmiammal/5th defendant and his two sons viz. Madhu and Balan. Thereafter, the 5th defendant, along with her two sons viz. Madhu and Balan, by means of partition deed dated 17.01.2011, partitioned the properties, inherited from Vediyappan. Madhu was allotted with ‘B’ schedule property in the partition deed and thus, the suit properties are the ancestral divided share of Madhu. The first plaintiff is the legally wedded wife of the said Madhu and the second plaintiff is the only daughter born in the year 1996 and the second plaintiff is also a co-parcener to the suit properties, as per the provisions of Act 1 of 1990 and Act 39 of 2005. The second plaintiff and her father Madhu have equal half share in the suit properties and they are in joint possession of the same. Around 11 or 12 years ago, the husband of the first plaintiff and the father of the second plaintiff/Madhu had, during subsistence of the first marriage, married the first defendant. As the marriage is void in law, she cannot get the status of a wife. Out of the void marriage, the defendants 2 to 4 are born to Madhu and the second wife and therefore, the defendants 2 to 4 are illegitimate children and they do not have any share in the suit properties. But, they can get share from the half share of their father/Madhu.

5. While so, on 28.02.2013, the said Madhu died leaving behind his mother, the plaintiffs and his three children born through the second wife. Therefore, the 5th defendant, the plaintiffs 1 and 2 and the defendants 2 to 4 have equal share in the half share of Madhu and are entitled to 1/12 share in the suit properties and the second plaintiff is entitled to 1/12 + 6/12 = 7/12 share and therefore, in all, the plaintiffs are entitled to 8/12 share in the suit properties.

6. While so, to defeat the rights of the plaintiffs, bogus and nominal sale deed dated 28.10.2011, has been created in the name of the first defendant, which is null and void and not binding on the legitimate right of the second plaintiff and therefore, legal notice was issued on 09.08.2014 and 24.04.2015 and have come up with the suit for declaration to declare the sale deed dated 28.10.2011 as null and void, for partition and for permanent injunction.

7. The defendants 1 to 4 resisted the suit by filing a written statement admitting the relationship of the parties. The defendants contended that after the birth of the second plaintiff, the first plaintiff deserted the said Madhu and she never cared for him and further, there was a customary divorce done before the Panchayat, as per the custom prevailing in Vanniyar community and therefore, the first plaintiff ceased to be the legally wedded wife.

8. According to the defendants, Madhu had sold entire suit properties to the first defendant through sale