JUDGMENT

This Appeal Suit has been preferred challenging the judgment and decree of the learned Additional District and Sessions Judge, Sivagangai, dated 26.02.2020 made in O.S.No.61 of 2015.

2.The appellant is the second defendant in the suit; the plaintiffs have filed the suit for partition and declaration that the sale deed executed in favour of the second defendant dated 19.05.2006 is null and void; the plaintiffs and the first defendant are siblings and children of one Vellai; the suit property belonged to the said Vellai and he was in enjoyment of the same; he died intestate on 01.09.2003; his wife/Pappathi predeceased him; since the plaintiffs and the first defendant are children of the deceased Vellai, they are entitled to inherit the properties of their father/Vellai; however, the first defendant sold the first item of the suit property in favour of the second defendant on 19.05.2006 without the knowledge of the plaintiffs; when it came to the knowledge of the plaintiffs, they have filed the suit for declaration that the said sale deed is null and void and also for the relief of partition and separate possession of their

3/4th share in the suit property;

3.The first defendant remained ex-parte; the second defendant resisted the suit by filing written statement stating that the first item of the suit property was not enjoyed by the plaintiffs and first defendant jointly; out of the ancestral properties belonged to Vellai, the first item of the suit property was given to the share of the first defendant and from whom, the second respondent purchased the same; so far as the second defendant is concerned, he is a bonafide purchaser for value; after having sold the property in favour of the second defendant, the first defendant now colluded with the plaintiffs and filed the suit; after taking possession of the first item of the suit property, the second defendant had made lot of improvements on the same; since the first defendant was enjoying the first item of the suit property by ousting the other sharers namely, the plaintiffs and also got it to his share, the sale deed executed in favour of the second defendant on 19.05.2006 is valid and enforceable; since the suit had been filed after nine years from the date of sale, it is barred by limitation; hence, the suit should be dismissed as against the first item of the suit property.

4.Basing of the above pleadings, the learned trial Judge framed the following issues:-

“1.Whether the plaintiffs are entitled for partition as claimed for?

2.Whether the sale deed dated 19.05.2006 executed by the

1st defendant in favour of the 2nd defendant is null and void?

3.Whether there was a earlier partition?

4.Whether the suit is bad for not adding all the properties of Vellai, the father of the plaintiffs?

5.To what other reliefs are the plaintiffs entitled to?”

5.During the course of trial, on the side of the plaintiffs, two witnesses were examined as P.W.1 and P.W.2 and Exs.A1 to A7 were marked. On the side of the defendant, one witness was examined as D.W.1 and Exs.B1 to B8 were marked.

6.At the conclusion of the trial and on considering the evidence available on record, the learned trial Judge had granted the preliminary decree for partition and separate possession by holding that the plaintiffs and the first defendant are entitled to 1/4th share each. The relief of declaration with regard to the sale deed was negatived. It is also observed that the second respondent is at liberty to workout her remedies in final decree proceedings. Aggrieved over the same, this second defendant has preferred this Appeal Suit.

7.Heard the learned counsel for the appellant and the learned counsel for the respondents 1 to 3 and went through the evidence on record.

8.Mr.VR.Shanmuganathan, learned counsel for the appellant submitted that despite the learned trial Judge had observed in the discussion of the judgment that the sale deed cannot be declared as null and void and denied the said relief, shares have been allot