Plaintiffs failed to prove coparcenary nature of ancestral property or tracing of sale proceeds to suit property; sale by father valid without coparcener rights established.

JUDGMENT :

K. RAJASEKAR, J.

The unsuccessful plaintiffs have come forward with this appeal, aggrieved over the dismissal of the suit filed for partition in O.S.No.187 of 2010, vide judgment and decree dated 06.08.2012 passed by the learned Principal District Judge, Cuddalore.

2. For the sake of convenience, the parties are referred herein according to their litigative status and rank before the Trial Court.

3. The case of the appellants/ plaintiffs is that, they are the son and daughters of the first defendant. Originally, Hindu undivided family constituting the first defendant, the second defendant and the plaintiffs were in possession of 'A' schedule property. The first defendant, as the Karta of the joint family, sold the 'A' schedule property and purchased the 'B' schedule property and they were in possession and enjoyment of the same. Without the consent of other coparceners, the first defendant sold the 'B' schedule property in favour of the defendants 3 and 4, who are the husband and wife, vide sale deed dated 13.03.2003. The plaintiffs are having 3/5th share in the 'B' schedule property, now they have come forward with the suit for partition and allotment of shares by metes and bounds. Before the Trial Court, the first defendant was set ex-parte, the second defendant supported the case of the plaintiffs and the defendants 3 and 4 contested the suit.

4. The case of the third and fourth defendants is that, the 'A' schedule property was not a joint family property and the 'B' schedule property was purchased by the first defendant from the income earned by him, as a carpenter. The 'A' schedule property was inherited by him, after the death of his father and mother. Further, the first defendant had sold the 'B' schedule property as early as in the year 2003 and the suit was filed after lapse of several years, alleging that the sale deed executed in favour of the third and fourth defendants was not known to them, which is clearly false. The third and fourth defendants purchased the property by paying proper sale consideration, hence prays to dismiss the suit.

5. The Trial Court after considering the pleadings on both sides, framed the following issues:

1. Whether the sale deed dated 13.03.2003 executed by the first defendant in favour of the defendants 3 and 4 is void?

2. Whether the plaintiffs are in joint possession of the suit properties?

3. Whether proper and correct court fess have been paid?

4. Whether the suit is collusive in nature?

5. Whether the plaintiffs are entitled to 3/5^th shares in the suit properties?

6. To what reliefs are the plaintiffs entitled to?

6. On the side of the plaintiffs, P.W.1 to P.W.6 were examined and Exs.A.1 to A.5 were marked. On the side of the defendants, D.W.1 to D.W.3 were examined and Exs.B.1 to B.7 were marked. Court Document was marked as Ex.X.1.

7. The Trial Court after considering the evidence placed on record, held that plaintiffs have approached the Court with unclean hands, by making false claim and also mis-leading the Court. It has also observed that plaintiffs have not made out the case, that the 'A' schedule property was a joint family property and out of the sale consideration of the 'A' schedule property, 'B' schedule property was purchased. Accordingly, the Trial Court has dismissed the suit.

8. Aggrieved over the dismissal of the suit, the plaintiffs have come forward with this appeal. During pendency of this appeal, the first defendant was died and his legal heir was added as fifth respondent in this case.

9. The question arises for consideration before this Court is as follows:

1. Whether the plaintiffs have established that the 'A'schedule property was a coparcenary property of plaintiffs and defendants 1 and 2?

2. Whether the 'B' schedule property was purchased from the s