IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 16.09.2011 CORAM THE HONOURABLE MR.JUSTICE R.S.RAMANATHAN S.A.No.987 of 2011 P. Devendiran .. Appellant / 1st Defendant Vs. 1. P.Rajendran .. 1st Respondent/ Plaintiff 2. Alamelu Ammal .. 2nd Respondent/2nd Defendant Prayer:- Second Appeal filed under Section 100 of Code of Civil Procedure against the judgement and decree dated 29.9.2009 made in A.S.No.50 of 2009 on the file of the I Additional Subordinate Court, Salem reversing the judgement and decree dated 13.2.2009 made in O.S.No.59 of 2008 on the file of the Principal District Munsif Court, Salem. For Appellant .. Mr. P. Jagadeesan J U D G E M E N T The 1st defendant in O.S.No.59 of 2008 on the file of the Principal District Munsif Court, is the appellant. 2. The 1st respondent/ plaintiff filed the suit for partition stating that the suit properties and other properties were the joint family properties of the plaintiff and 1st defendant who are brothers along with their father. On 28.11.1982 the plaintiff, 1st defendant and their father entered into a partition deed and divided the properties under the partition deed. The suit properties were allotted in favour of the parents to be enjoyed by them during their life time and thereafter the sons namely the plaintiff and 1st defendant shall take the property equally. Contrary to the terms of the partition deed, his father sold the property which was allotted in his favour to be enjoyed by him during his life time to the 1st defendant and on that basis the 1st defendant issued a notice stating that he has purchased the property and therefore he is the owner of the property. As the father had no right to alienate the property and he was permitted to enjoy the property, the sale by the father is not binding and therefore the suit was filed by the plaintiff/ 1st defendant for partition. https://hcservices.ecourts.gov.in/hcservices/ 3. The appellant/ 1st defendant contested the suit stating that the parents have got every right to sell the property and to meet the necessity namely to meet the medical and other expenses, they have sold the property in favour of the appellant/ 1st defendant and the sale is binding on the plaintiff/ 1st respondent. Further, the suit is also a premature one as the mother is alive. 4. The trial Court dismissed the suit holding that the suit is premature and relied upon the Judgement of the Supreme Court reported in 2007 (2) Law Weekly, 779 (M/s. Bay Berry Apartments Pvt. Ltd., & another v. Shbha & others). The first appellate Court reversed the findings of the trial Court and decreed the suit subject to the condition that only after the death of the 2nd defendant namely the mother, the preliminary decree passed would come into effect and thereafter the appellant/ plaintiff can apply for passing the final decree. This is challenged in the Second Appeal. 5. The learned counsel for the appellant submitted that the suit is a premature one and the 1st respondent/ plaintiff has no cause of action to file the suit for partition during the life time of the 2nd defendant namely the mother who is entitled to life estate even as per the partition deed Ex.A1 and the Hon'ble Supreme Court has also held so in the Judgement relied upon by the trial Court and therefore the trial Court has rightly dismissed the suit as a premature one. He further submitted that the plaintiff/ 1st respondent did not enter into the box and therefore adverse inference can be taken and that was also rightly considered by the trial Court and dismissed the suit. 6. I am unable to accept the contention of the learned counsel for the appellant. Admittedly, under Ex.A1 life estate was given in favour of the 2nd defendant and her husband Ponnusamy who are the parents of the appellant and the 1st respondent. Therefore, any sale made by them will not inure beyond their life time. Further as per Ex.A1 the appellant and the 1st defendant are entitled to the vested remainder to the suit prperty and by confering life estate of their parents their possession was deferred during the life time of the parents. It is settled law that when the vested remainder is given to two persons they are the owners of the property and they can deal with the property and possession only is postponed during the life time of the life estate holder. Therefore, as a vested remainder the 1st respondent is entitled to half share in the property and as the life estate holder sold the proeprty as if it belonged to them and the appellant knowing fully well that the parents were given life estate and he is entitled to half share in the vested remainder, purchased the property, the 1st respondent filed the suit for partition. As the 1st respondent is entitled to half share in the property, he is entitled to file a suit for partition even during the life time of the life estae holder and he cannot ask for possession during the life time of the mother. Hence, the suit is https://hcservices.ecourts.gov.in/hcservices/ not premature and the lower appellate Court has rightly held that final decree can be applied only after the death of the 2nd defendant the mother who is entitled to life estate over the property. Further, in the Judgement reported in 2007 (2) Law Weekly, 779 (M/s. Bay Berry Apartments Pvt. Ltd., & another v. Shbha & others), the Hon'ble Supreme Court dealt with the case where a suit for declaration was filed by the vested remainder holder that the sale by the life estate holder is not valid and for injunction and in that context the Hon'ble Supreme Court has held that the suit filed by the vested remainder during the life time of the life estate holder is a premature one. As a life estate holder they are entitled to deal with the property and the purchaser will not get any right after the death of the life estate holder. But that does not mean the vested remainder cannot exercise his right during the life time of the life estate holder. In the suit the vested remainder only exercised his right to claim partition and therefore it is not a premature one and the lower appellate Court has rightly considered all these aspects and allowed the appeal. Hence, I do not find any infirmity in the Judgement and Decree of the lower appellate Court and no substantial question of law arises for consideration in the Second Appeal and the Second Appeal is dismissed. 7. In the result, the Judgement and Decree of the lower appellate Court are confirmed and the Second Appeal is dismissed. kr Sd/- Deputy Registrar //True Copy// Sub Asst. Registrar To 1. The Principal District Munsif, Salem 2. The I Additional Subordinate Judge, Salem. + 1 cc to Mr. S. Kalyanaraman, Advocate SR No.57473 + 1 cc to Mr. P. Jagadeesan, Advocate SR No.57498 VSN(CO) SR/20.10.2011 S.A.No.987 of 2011 https://hcservices.ecourts.gov.in/hcservices/