The court ruled that alienations made by a Kartha without legal necessity are voidable, affirming that only direct heirs can challenge such alienations posthumously.

JUDGMENT

The 6^th and 7^th defendants in a suit for partition are the appellants herein.

(A)Factual Matrix:

2.The first respondent herein had filed O.S.No.72 of 2004 before the District Munsif Court, Kovilpatti for the relief of partition and separate possession of his 1/5^th share. The trial Court by its judgment and decree dated 03.08.2005 had partly decreed the suit with regard to Item Nos.2 to 4 of the suit schedule properties. The suit was dismissed with regard to the 1^st item. The plaintiff preferred A.S.No.64 of 2005 before the Sub Court, Kovilpatti challenging the disallowed portion.

3.The learned Subordinate Judge had allowed the appeal and granted a decree for partition with regard to the 1^st item also. Challenging the said judgment and decree of the First Appellate Court, the present second appeal has been filed by the defendants 6 and 7.

4.As per plaint averments, the immovable properties belonged to one Ayyappa Naicker. He had died 30 years ago leaving behind his three sons namely Ramasamy Naicker, Sathoorappa Naicker (first defendant) and Rengasamy Naicker. The said Sathoorappa Naicker had passed away on 03.09.2012. The plaintiff herein is one of the sons of Sathoorappa Naicker. His other brothers are impleaded as Defendants 2 to 4.

5.According to the plaintiff, in the family partition between the 1^st defendant and his brothers, the suit schedule properties were allotted to the 1^st defendant. The plaintiff and the defendants 2 to 4 are the sons of the 1^st defendant constituted a Hindu Joint Family and they are in joint possession and enjoyment. The 1^st defendant as the head of the family was managing the suit schedule properties. The plaintiff had further contended that the 1^st defendant had started leading wayward life and without heeding to the advise of the plaintiff and his brother, he is living separately. The 1^st defendant is making attempt to alienate the suit schedule property at a throw away price. He had sold a portion of the 1^st item of the suit schedule property to the defendants 5 to 7. Hence, a legal notice was issued to the 1^st defendant and the defendants 5 to 7 on 22.11.2002. However, no reply was received.

6.The plaintiff had further contended that since the suit schedule properties are ancestral properties of the plaintiff and the defendants 1 to 4, the alienation made by the 1^st defendant in favour of the defendants 5 to 7 is invalid and it is not binding upon the plaintiff. Though a request was made for partition, the first defendant has not acceded to the said request and therefore, the present suit for partition claiming 1/5^th share in the suit schedule properties.

7.The defendant 1, 2, 4 and 5 had remained exparte.

8.The 3^rd defendant who is one of the brothers of the plaintiff had filed a written statement supporting the case of the plaintiff.

9.The 5^th defendant had filed a written statement contending that the suit schedule properties are the separate properties of the grandfather of the plaintiff namely Ayyappa Naicker. After the death of the said Ayyappa Naicker, his three sons namely Ramasamy Naicker, Sathurappa Naicker and Rengasamy Naicker have not partitioned the properties and they are enjoying the same jointly. Ramasamy Naicker did not have any legal heirs. The first defendant represented that the suit schedule properties are his separate properties and he would like to alienate the same. The first defendant had sold the same to the 5^th defendant who is the granddaughter of the Ramasamy Naicker. However, he had cancelled the said sale and again sold it to the 6^th defendant. Therefore, the 5^th defendant had filed O.S.No.126 of 2002 and the same is pending. T