J U D G M E N T

This Appeal Suit has been filed challenging the judgment and decree of the learned Principal District and Sessions Judge, Virudhunagar District at Srivilliputhur, dated 24.01.2019, made in O.S.No.166 of 2011.

2.The appellants are the plaintiffs in the suit. The plaintiffs have filed the suit for the reliefs of declaration, partition and injunction.

3.The facts of the case is that the suit property was originally owned by the plaintiffs ancestor, by name Mayan @ Irulan by virtue of an oral partition deed entered between himself and his family members; after the demise of Mayan his only son Ayyanar inherited the property and he was in enjoyment of the same; Ayyanar died on 30.12.1994, leaving behind his son/second defendant, daughter/fifth plaintiff and his wife/fourth plaintiff; the plaintiffs 1 to 3 are the children of the second defendant; after the demise of Mayan, the suit property was treated as joint family properties of Ayyanar, the second defendant and the fifth plaintiff, the second defendant is not entitled to make any alienation of the suit property by binding the interest of other joint family members; without the knowledge of the plaintiffs, the second defendant has sold the suit property in favour of the first defendant on 31.07.2003; the said sale deed will not bind the interest of the plaintiffs; since the second defendant has illegally executed a sale deed, in favour of the first defendant, the plaintiffs 1 to 4 have issued legal notice to the defendants on 19.09.2011, questioning the same; the defendants did not send any reply notice and hence the plaintiffs have filed the suit to declare the sale deed, dated 31.07.2003, as null and void and seeking other reliefs for partition and separate possession of the share in the suit property and also for permanent injunction, restraining the defendants from interfering with the possession and enjoyment.

4.The second defendant remained exparte. The first defendant contested the suit by stating that it is true that the suit property was originally belonged to one Mayan @ Irulan; the said Mayan had two wives; Ayyanar is the son of the first wife and the other wife of Mayan had three daughters; after the demise of Mayan also, the patta for the property continuously stood in the name of Mayan; the first wife of Mayan died in the year 1994; after her demise, her children and the children of the second wife of Mayan had inherited the suit property and they were in joint enjoyment; but the first defendant came to know all the details only subsequent to the filing of the suit; since the second defendant has stated that the suit property belonged to him absolutely, he got sale from him; after purchasing the suit property, the first defendant made some improvements and also constructed a house therein and the plaintiffs 4 & 5 were aware of the sale made by the second defendant in favour of the first defendant; despite that, they did not question the same within a period of limitation; the second defendant as Kartha of the family had sold the property in favour of the first defendant, for the welfare of the family; Since he was in-charge of education and up-bringing of the children, he needed to sell the suit property; hence, the same will bind the plaintiffs; though the plaintiffs have sought the relief of declaration in respect of the sale deed, dated 31.07.2003, no Court fee has been paid, as per Section 25 (d) of Tamil Nadu Court Fee Act; immediately after the same, the first defendant has taken possession of the suit property and the plaintiffs are continuously in the enjoyment of the same; after the demise of Ayyanar, the first wife Arumugathai executed a settlement deed, in respect of the property inherited from her husband in favour of the the second defendant on 01.04.2009; the said property belonged to his husband Ayyanar, by way of inheritance from his father Mayan, this would show that there was partition between the family members and they have been de