A sale of joint family property executed by the Kartha may be valid unless evidence proves it was not for legal necessity, thereby affecting the rights of family members claiming share.

JUDGMENT :

G.Ilangovan, J.

This second appeal is filed against the judgment and decree of the Sub Judge, Tuticorin, passed in AS No.18 of 2002, dated 23/08/2004 reversing the judgment and decree of the District Munsif, Srivaikundam, passed in OS No.405 of 1994, dated 21/12/2001.

2.The plaint averments:-

(i)The 4^th defendant namely Garudappan Srinivasa Iyengar is the father of the plaintiff and the defendants 1 to 3. The suit properties are the coparcenary undivided properties. They are in joint possession and enjoyment. All are entitled to 1/5^th share equally. But the 4^th defendant was acting against the interest of the joint family and was not taking care by the defendants 1 to 3. The plaintiff demanded partition in January 1994. The 5^th defendant is a stranger. But from 10/09/1994, he started saying that he purchased the entire property from the 4^th defendant and attempted to remove the plaintiff and the defendants 1 and 2 forcibly from the possession. If at all, the 5^th defendant can work out his remedy by filing a suit for partition. Hence, the suit is filed seeking partition of the plaintiff's 1/5^th share, for permanent injunction, costs.

(ii)The 6^th defendant was impleaded on her own stating that she is also having share in the property. So, the plaint was amended.

(iii)The 5^th defendant namely Sengamalam Janaki alone contested the matter. The defendants 1 to 4 remained ex-parte, later the 6^th defendant was deleted from the suit.

3. The statement filed by the 5 t h defendant :-It is denied that the 4^th defendant was acting against the interest of the family property. The 5^th defendant purchased the entire properties. It is denied that the sale executed by the 4^th defendant is not binding upon the share of the defendants 1 to 3. The 4^th defendant for the family expenses and for maintenance of the childrens for valid considerations executed the sale deed, dated 29/10/1982 in favour of the defendant. In the sale deed, the plaintiff's mother and the brother signed as witnesses. The defendants leased out the property in Door No.136 of in favour of one Ramakrishna Moorthy. The other houses are in the possession of the defendants. Since the sale deed was effected by the 4^th defendant as Kartha of the joint family, the suit is liable to be dismissed.

4.On the basis of the pleadings of both sides, the following issues were framed by the trial Court:-

(1)Whether the plaintiff is entitled to get 1/5^th share in the suit property?

(2)Whether the plaintiff is entitled to get the relief of permanent injunction as against the 5^th defendant?

(3)To what other reliefs, the plaintiff is entitled to?

5.On the side of the plaintiff, 2 witnesses were examined and 2 documents marked. On the side of the defendants, one witness was examined and 8 documents were marked. The Commissioner's report and plan were marked as Exs.C1 and C2.

6.The trial court, by judgment and decree, dated 21/12/2001 passed preliminarily decree for partition as prayed for without costs and permanent injunction was granted. Against which, AS No.18 of 2002 was preferred by the Sub Court, Tuticorin. The appellate court differed from the judgment and decree of the trial court, dismissed the suit by allowing the appeal.

7.Against which, this second appeal is preferred by the appellant/plaintiff.

8.At the time of admitting the second appeal, the following substantial questions of law were framed:-

(1)Whether the findings of the lower appellate court are vitiated by failure to consider the evidence of P.W