IMPORTANT POINT
A co-parcener under Mitakshara law cannot unilaterally dispose of ancestral property without the consent of other co-parceners, and a deed executed as a gift of ancestral property is invalid.

JUDGMENT :

THE HON'BLE MR.JUSTICE G.ARUL MURUGAN

PRAYER: Second Appeal is filed under Section 100 of Civil Procedure Code, against the judgment and decree dated 03.08.2009 passed in A.S. No.135 of 2000 on the file of First Additional District Judge of Coimbatore, confirming the judgment and decree dated 31.03.2000 made in O.S. No.139 of 1991 on the file of Subordinate Judge, Tiruppur.

The plaintiff in the suit is the appellant in the above appeal. The second appeal has been filed against the judgment and decree dated 3.8.2009 in AS.No.135 of 2000 on the file of First Additional District Judge of Coimbatore, confirming the judgment and decree dated 31.03.2000 in OS.No.139 of 1991 on the file of Sub ordinate judge, Tiruppur. The first and second defendants died pending suit and the defendants 3 to 10 were impleaded as legal heirs in the suit.

2. Pending appeal, the first respondent died and respondents 2 to 4 have been recorded as legal heirs. The fifth respondent also died and the respondents 6 to 8 have been recorded as his legal heirs. Further, the 8th respondent in the appeal also died and the respondents 9 to 11 have been impleaded as his legal heirs.

3. For the sake of convenience, the parties are referred to as per the ranking before the trial court.

The brief facts, as per the averments in the plaint, are as under:

4. According to the plaintiff, the suit properties originally belonged to the plaintiff's father Ramasami Asari. He had executed a registered settlement dated 23.04.1919, in favour of his wife Angammal.

In the settlement deed he had created life interest in favour of Angammal by which she can enjoy the properties in her life time and after her demise, the properties shall vest with the heirs of Angammal and Ramasami Asari. According to the plaintiff, Ramasami Asari died on 17.02.1940 and his wife Angammal also died intestate in or about 1957.

She died leaving behind a son, Chidambara Asari and two daughters, the plaintiff herein and the second defendant Govindammal. Chidambara Asari died in the year 1952 leaving behind his son Velusamy, the first defendant herein. According to the plaintiff, after the death of her mother Angammal, the plaintiff and the defendants are the legal heirs to succeed the properties mentioned in the settlement deed and the suit properties devolved on the plaintiff and the defendants and they have been enjoying the properties in common. It is the case of the plaintiff that the first defendant was making payment to the plaintiff from the income derived from the lands. Later, the defendants became inimical and acted against the plaintiff's interest. The plaintiff demanded for amicable partition. Since the same was not satisfied, the plaintiff issued legal notice on 26.2.1991, for which, the evasive reply was made and as such, the plaintiff filed the suit for partition and injunction.

5. The first defendant resisted the suit by filing the written statement stating that the necessary stamp has not been paid as per Sec.37(2) of the Court Fees Act. As the plaintiff has no right or in possession of the suit property, the suit is not maintainable. It is the case of the first defendant that the suit properties are originally ancestral properties of his grandfather Ramasami Asari and Ramasami Asari had only son Chidambara Asari, who is the father of the first defendant. In the ancestral property, Chidambara Asari is entitled to half share in the ancestral property by birth and Ramasami Asari executed a settlement deed in favour of his wife Angammal by settlement deed 23.04.1919 in Ex.A.1. As per the settlement deed, Angammal was only given a life time interest and she was entitled to enjoy the property during the life time and thereafter the property got vested with Chidambara Asari and his son, the first defendant. It is the further case that Ramasami Asari died in the year 1940 and his wife Angammal also died even prior to the year 1950. Neither the plaintiff nor his sister, the second defendant Govinda