A coparcener cannot execute a settlement deed favoring non-coparceners without consent, rendering it void; however, a sale executed by the Kartha for family necessity is valid and binding on minor co-parceners.

JUDGMENT :

PRAYER: Second Appeal filed under Section 100 of C.P.C., against the judgment and decree passed in A.S.No.28 of 1997 dated 13.12.1999 on the file of the Sub-Court, Ambasamudram confirming the judgment and decree passed in O.S.No.399 of 1989 dated 30.09.1996 on the file of the District Munsif Court, Ambasamudram.

The unsuccessful plaintiff in a suit for declaration and recovery of possession is the appellant. The suit was dismissed by the trial Court and the findings of the trial Court were affirmed by the first appellate Court. Aggrieved by the concurrent findings, the plaintiff is before this Court.

The averments found in the plaint:

2. According to the appellant/plaintiff, the suit property belonged to the second defendant. The third defendant is the wife of the second defendant. The plaintiff and defendants 4 to 7 are the children of defendants 2 and 3. The first defendant is the purchaser of the suit second schedule property from the second defendant. Since defendants 4 to 7 failed to co-operate with the plaintiff, the suit was filed by the plaintiff by arraying them as defendants. The entire suit property was shown as “first schedule” and the portion of the property purchased by the first defendant was shown as “second schedule”. The second defendant executed a settlement deed on 13.03.1963 in respect of the entire suit property viz., first schedule. As per the terms of the settlement, defendants 2 and 3 should enjoy the property for life time without any power of alienation and thereafter, the property should go to their legal heirs. On the basis of the said pleadings, the plaintiff sought for declaration that the sale deed executed by second defendant in favour of first defendant on 10.11.1975 would not be binding on the plaintiff and defendants 4 to 7, after the life time of defendants 2 and 3 and also for a consequential relief of recovery of possession of the suit property in favour of the plaintiff and defendants 4 to 7 after the life time of defendants 2 and 3.

The averments found in the written statement of the first defendant:

3. The first defendant filed a written statement and resisted the suit on the ground that the suit property was ancestral property of second defendant and he got the same under a partition deed dated 05.04.1958. The first defendant also claimed that the second defendant had no right to execute the settlement deed in respect of ancestral properties and hence, the settlement deed relied on by the plaintiff was not valid. It was also pleaded by the first defendant that the suit property (second schedule) was sold to the first defendant by second defendant for family necessity on 10.11.1975. The defendants 2, 3 and 6 executed a receipt for having received the sale consideration on 23.03.1981 and confirmed the sale transactions. It was also claimed that the defendants 5 and 7 also signed the receipt admitting that the sale was for family necessity. Thus, the first defendant claimed that sale in favour of the first defendant would bind the plaintiff and other children of the second defendant. It was also claimed by the first defendant that the sale transaction was not questioned by the plaintiff and other children of the second defendant within three years from the date of attaining majority and hence, the suit was barred by limitation.

Evidence let in by the parties:

4. Before the trial Court, the plaintiff was examined as P.W.1 and 5 documents were marked as Ex.A1 to Ex.A5. On behalf of the defendants, two witnesses were examined as D.W.1 and D.W.2 and 34 documents were marked as Ex.B1 to Ex.B34.

Findings of the Courts below:

5. On appreciation of oral and documentary evidence available on record, the trial Court came to the conclusion that the suit property was ancestral property of the second defendant and hence, the settlement deed executed by him was invalid. The trial Court also found that sale in favour of the first defendant was executed by the second defendant as Kartha of the Hindu jo