(The judgment of the Court was delivered by M.CHOCKALINGAM, J.) This appeal challenges an order of the learned single Judge of this Court allowing an application for rejection of the plaint in C.S.No.659 of 2004 whereby the appellant sought for partition of her 1/8th share in the suit property.
2. The Court heard the learned counsel for the appellant and the learned counsel for the respondents.
3. The gist of the case of the plaintiff/appellant before the trial Court was that the property mentioned in the plaint was the Hindu Joint Family Property. It came for division by partition deed dated 7.5.1947 in which the suit property came to the hands of one Srinivasan who in turn had executed a sale deed in favour of one Ramaiah on 22.12.1957. The said Ramaiah subsequently executed a settlement deed on 31.10.1963 for the suit property and the other property to a total extent of 5 grounds and 807 sq.ft. in favour of his son,the first defendant and his wife was shown as the second defendant. The first defendant executed a sale deed dated 1.12.1971 in respect of the property found in the settlement deed dated 31.1.1963 excepting the suit property in favour of Ganesa Nadar and the remaining suit property in favour of the 8th and 9th defendants by sale deed dated 9.12.2002. The first defendant has got 5 daughters and one son. The plaintiff is one of the daughters and according to her, she is entitled to 1/8th share in the property since the property is the joint family.
4. Pending the suit, the instant application was filed for the rejection of the plaint stating that the suit was the exclusive property of the first defendant and under such circumstances, there is no question for any partition would arise. The learned Single Judge heard the contentions putforth by the parties and took a view that the suit was to be rejected on the grounds stated therein. Under such circumstances, the plaintiff has brought forth this appeal before the Court.
5. The learned counsel appearing for the appellant in short would submit that it is an admitted position that the grand father got the property by way of a sale deed dated 1.2.1971 in respect of the entire property and in so far as the first defendant was concerned it was actually settled upon him originally. If to be so, the first defendant is treating the property as the Joint family Property and all the records and income tax returns would show that the property got the character of a joint family property. It is the joint family property naturally the plaintiff is entitled to a share. Only after framing issues, allowing the parties to putforth the evidence and on appreciation of the same, a correct decision could be taken, but the learned trial Judge has allowed the application seeking rejection of the plaint, hence, it is erroneous. Under such circumstances, the order of the learned single judge had got to be set aside.
6. According to the learned counsel for respondent, admittedly, the property was settled upon the father of the plaintiff/first defendant and once the property was settled upon him, he became the owner of the property and he also treated the property as his own property ad he is also alive. Under such circumstances, so long as the ownership of the first defendant is recognised, during his life time, no question of claiming the share in the property would arise. Therefore, the order the learned single judge has got to be sustained.
7. The Court paid its anxious consideration on the submissions made on either side.
8. It is not in controversy that the property came to be divided by partition deed dated 7.5.1947 by which the property went to the share of the father Srinivasan and he also executed a sale deed dated 22.12.1957 in favour of Ramaiah who in turn, executed a settlement deed dated 31.10.1963 and the other properties were actually given in favour of his son, the first defendant herein. It is also admitted that the first defendant executed a sale deed on 1.2.1971 in respect of the property found in the settlement deed. There was a settlement deed in favour of one Ganesa Nadar and the remaining property in favour of the defendants 8 and 9 and now the dispute is with regard to the remaining property.
9. It is an admitted position that the grand father of the plaintiff actually got the property by way of sale deed and the father of the plaintiff who is the first defendant actually became the owner of the property by way of settlement deed and he is also alive . It is an admitted position that the first defendant got the property by way of settlement deed. It is too late for the plaintiff to state that it is a joint family property and she is liable for 1/8th share in the property. The said contention cannot be countenanced either factually or legally. Under such circumstances, the contentions putforth by the learned counsel for the appellant that the property belongs to the joint family and it has got to be proved only by adducing the evidence, cannot be countenanced. It does not stand the scrutiny of law.
10. In the instant case, while it is an admitted position that the father of the plaintiff/first defendant got the property by way of settlement and became the owner of the property exclusively and enjoying the same as on date, the suit has been brought forth, that too, while the father of the plaintiff/first defendant is alive. Under such circumstances, it could be termed as misconceived in law. 11. Under such circumstances, the learned single Judge is perfectly correct in allowing the application, rejecting the plaint and therefore, the order of the learned single Judge has got to be sustained, accordingly, sustained. The appeal fails and the same is dismissed. No costs. Consequently, M.P.No.2 of 2007 is closed.