J U D G M E N T

[Judgment of the Court was delivered by V.M.VELUMANI,J.]

The appellant is the plaintiff and respondents are defendants in O.S.No.126 of 2008 on the file of the Principal District Court, Namakkal. The appellant filed the said suit for partition of the suit properties into two equal shares and to allot one such share to the appellant and put her in separate possession and enjoyment of the same and also for the relief of permanent injunction retraining the respondents not to alienate the suit properties till the final division takes place. After contest by the judgment and decree dated 08.06.2016, the said suit was dismissed.

2.The unsuccessful plaintiff has come out with the present appeal challenging the judgment and decree dated 08.06.2016 made in O.S.No.126 of 2008 on the file of the Principal District Court, Namakkal.

Case of the appellant:

3.The appellant is the daughter of the 1^st respondent. The suit properties are ancestral and joint family properties of the appellant and 1^st respondent. The appellant is having half share in both the properties. The first item of the suit property was allotted to the 1^st respondent in the partition effected between the 1^st respondent, his brother and father evidenced by the deed of partition dated 15.06.1972 registered as Document No.1064/1972 on the file of Sub Registrar, Paramathi. From and out of income of the first item of the suit property, the 1^st respondent purchased the second item of the suit property by the deed of sale dated 18.09.1996 bearing Document No.409/1996. The appellant is entitled to half share in the said first item of the suit property and her right over the first item of the suit property will not get extinguished by fraudulent sale in favour of the 2^nd respondent.

3(i). The 1^st respondent had illicit relationship with one Arukkani and in the said illicit relationship, one Gomathi and Boopathi were born. They do not have any share in the suit properties. The 1^st respondent fraudulently sold first item of the suit property to the 2^nd respondent as Manager of the Hindu Mittakshara Co-parcenary, by sale deed dated 20.09.2002 bearing Document No.466/2002 for himself and on behalf of the appellant, Gomathi and Boopathy. The appellant came to know about the sale only on 13.03.2008.

The said sale is not binding on the appellant and not for the benefit of the appellant. The said sale is void abinitio, which is clear as the said Gomathi and Boopathy made as parties to the said sale deed.

3(ii). The appellant is in joint possession of the suit properties and no alienation possible for she is in joint possession with first respondent. Hence, the appellant repeatedly demanded division of the property. The 1^st respondent did not partition the property. The appellant issued notice dated 27.06.2008 calling upon to divide the suit properties into two equal shares and allot one share to the appellant. The 1^st respondent did not partition and did not send any reply to the said notice. The respondents are making arrangements to sell the suit properties. Hence, the appellant filed suit for partition and for injunction restraining the respondents not to alienate the suit properties till the final division takes place.

Case of the 1^st respondent:

4.The 1^st respondent filed written statement and denied all the allegations made in the plaint. According to the 1^st respondent, one Saraswathi, wife of the 1^st respondent and mother of the appellant deserted the 1^st respondent after the birth of the appellant in the year 1986, left the appellant and 1^st respondent and married one person residing in Veerapudhur Village, near Manapparai.

4(i). As per the customs, the 1^st respondent married one Arukkani as in the Panchayat, wherein it was held that Saraswathi, mother of the appellant, wife of the 1^st respondent informed the Panchayathars that she will not live with the 1^st respondent, she cannot maintain appellant and there is no relationship between Saraswathi and 1^st respondent. The tw