A.S. No. 969 of 2007. Case: Minor Vinodhini and Minor Anupama Appellants 1 and 2 being minors, represented by paternal grand father S.T. Arumuga Mudaliar Vs A. Tamilarasan, Kamalam and Devendran. High Court of Madras (India)

Case NumberA.S. No. 969 of 2007
CounselFor Appellant: Mr. S.N. Ravichandran, Adv. and For Respondents: Mr. S. Mohanasundararajan for Mr. S. Gomathinayagam and Mr. R. Vasudevan for Mr. E. Kannadasan, Adv.
JudgesR. Banumathi and R. Subbiah, JJ.
IssueHindu Minority and Guardinship Act, 1956 - Sections 12, 6, 8
Citation2012 (4) LW 816
Judgement DateSeptember 18, 2012
CourtHigh Court of Madras (India)

Judgment:

R. Banumathi, J.

1. This appeal arises out of Judgment in O.S.No. 34 of 2005 dismissing the suit filed by S.T. Arumugam Mudaliar on behalf of his minor grand children for partition. The plaintiff Arumugam Mudaliar has three sons viz., Karthikeyan, Tamilarasan (1st defendant) and Balamuthu. Minor plaintiffs are the daughters of the said Tamilarasan (1st defendant). The 2nd defendant is the wife of the 1st defendant. A family partition was effected under Ex.A.1 partition deed (dated 26.3.1990) and in the said partition, the suit properties were allotted to the share of the 1st defendant. Since there was dispute in respect of the allotment of properties in respect of Survey Nos. 219 and 220/1, Karthikeyan filed suit in O.S.No. 90 of 1992 on the file of District Munsif's Court, Vellore for declaration and injunction and the said suit was decreed in part after full trial. The appeal preferred against the said judgment in A.S.No. 81 of 1996 was dismissed. In respect of the same survey numbers, there was another round of litigation by the 1st defendant - Tamilarasan and his another brother - Balamuthu in O.S.No. 729 of 1996.

2. Case of plaintiffs is that the 1st defendant is not looking after the family and is acting against and adverse to the interest of the minors. The 1st defendant is a liquor addict and taking advantage of his addiction to liquor the 3rd defendant had taken two sale deeds - Ex.A.8 (dated 16.7.2004 and Ex.A.9 (dated 16.9.2004) from the 1st defendant in respect of the property in Survey Nos. 219 and 220/1. The 3rd defendant had taken documents incorporating the self serving recitals based upon Ex.A.1 - partition deed. Further case of plaintiff is that Exs.A.8 and A.9 sale deeds are very much against the interest of the minors. In view of amended Hindu Succession Act, minor plaintiffs, being daughters of defendants 1 and 2, have become entitled to equal shares and that each of the minor defendants are entitled to 1/3rd share in the suit properties. Since minor plaintiffs are not eo'nominee parties to the sale deeds -Exs.A.8 and A.9, minor plaintiffs are not bound by Exs.A.8 and A.9 sale deeds and therefore the sale deeds are not liable to be set aside the sale deeds. Alleging that he is taking care of minors, on behalf of the minor plaintiffs, their paternal grandfather - Arumugam Mudaliar filed the suit seeking for division of properties into three equal shares and to allot two such shares to the plaintiffs.

3. Defendants 1 and 2 resisted the suit contending that the 1st defendant is doing pawn broker business and that the minor daughters are in the care and custody of defendants 1 and 2 and that the 1st defendant is giving good education to the minor plaintiffs. The 1st defendant denied having been addicted to drinks as alleged by his father -- Arumugam Mudaliar. According to defendants, the property was sold to the 3rd defendant for valuable consideration and that the sale was only for developing the 1st defendant's pawn broker business and for the benefit of the family and also to provide good education and shelter to the minor children. The 1st defendant has averred that he sold the property as kartha and manager of the family and that too, for the benefit and welfare of the minor children. Defendants further averred that the father of 1st defendant viz., Arumugam Mudaliar is a court litigant and when the minor children are under the care and custody of the 1st defendant, he cannot be the next friend of the minor children to maintain the suit. Defendants raised objection as to the maintainability of the suit filed by the paternal grandfather without getting himself declared as a next friend of the minor plaintiffs.

4. On the above averments, four issues were framed in the trial Court. On behalf of the plaintiffs, Arumugam Mudaliar examined himself as P.W.1 and Exs.A.1 to A.10 were...

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