A son who has voluntarily separated from a Hindu coparcenary through a registered partition deed is precluded from claiming a share in the father's estate under intestate succession if other coparceners remained undivided with the father at the time of his death.

JUDGMENT

1.This appeal has been filed against the Judgment and Decree passed by the learned Subordinate Judge, Theni, in A.S.No.55 of 2017, dated 22.06.2022, confirming the Judgment and Decree passed by the District Munsif Cum Judicial Magistrate Court, Bodinayakanur in O.S.No.97 of 2011 dated 06.03.2017.

2.The plaint averments are in brief:

The suit properties and other properties originally belonged to one Veerapathran. Veerapathran had two wives called Agathaammal and Parvathiammal. On 08.07.1964, there was a partition by registered document, by which, 'A' schedule was allotted to Veerapathran and his second wife's children. Veerapathran and Paramasivam died. So the property devolved upon the second wife Parvathiammal and their son Karuppiah. On 23.02.1998, a portion of the A schedule allotted to Veerapathran and second wife's children was sold to the plaintiff by Parvathiammal and Karuppiah. Ever since from the date of sale the plaintiff was in possession and enjoyment. Revenue records were changed in the name of the plaintiff. On the west of the suit property, the first defendant is having properties. They wanted to purchase the property. But, the plaintiff refused. To prevent the defendant from further causing trouble the suit is laid for permanent injunction and cost.

3.Statement was filed by the first defendant with the following averments, which are adopted by the defendants 2 and 3:

Original ownership by Veerapathran is admitted. Within a week from the date of partition deed dated 08.07.1964 Paramasivan died. Later Veerapathran also died. But during the life time neither Veerapathran nor Paramasivam executed any document in respect of the properties. Karuppiah executed sale deed in respect of S.No.249/5C measuring about 45 cents on 18.09.1991 in favour of his daughter Kavitha. Karuppiah has no right to execute the settlement deed. After the death of Veerapathran and Paramasivan, the defendants are entitled to the share through Sundarraj. Sundarraj is the son born through first wife to the Veerapathran. Since title is under issue, suit ought to have been filed for declaration also. The entire property is in possession and enjoyment of the defendants. The third item was purchased by Sundarraj from one Natrajan on 13.11.1964. That property was sold by Parvathiammal and Karuppiah in favour of the plaintiff, which is not legal, which came to the knowledge of the defendants only belatedly. Sundarraj is also necessary party, since he is alive. So the suit is bad for non joinder of necessary parties.

4.On the basis of the pleadings, the trial Court formulated the following issues.

1.Whether the property belongs to the plaintiff and is possession?

2.Whether the suit is bad for non joinder of necessary parties?

3.Whether the plaintiff is entitled for the decree of permanent injunction?

4.To what other relief?

5.To substantiate the case, on the side of the plaintiff one witness was examined and 8 documents were marked. On the side of the defendants no witness was examined and no document was marked.

6.At the conclusion of the trial Court process suit was decreed as prayed for with costs. Against which appeal was preferred before the Sub Court, Theni in A.S.No.55 of 2017 by the defendants. Appeal was dismissed concurring with the Judgment and Decree of the trial Court. Against which this second appeal is preferred by the defendant.

7.Notice was ordered to the respondent. They have also entered appearance on 21.11.2023. The following substantial question of law was framed?

1. Whether the divided son is entitled to