Judgment

GUPTA, J.:- This appeal by certificate of fitness granted by the Madras High Court is directed against a Judgment and Decree of that Court affrming a preliminary decree for partition made by the trial Court. By the said decree the 1/6th share of the first plaintiff in the disputed property was declared. The five defendants were the appellants in the High Court; the fifth defendant, Annavi Pillai, died while that appeal was pending. The appeal in this Court is at the instance of only two of the defendants, Rajagonpal and Somasundaram, the first and the fourth defendant respectively:

2. The material facts leading to the suit for partition are these. Annavi Pillai and his five sons, Rajagopal, Akhilandam, Arumugam. Balasubramaniam and Somasundaram constituted a Mitakshara joint family. Admittedly, the joint family had no property of its own until 1946 though Annavi Pillai owned certain self acquired property. On June 5. 1943 Anavi Pillai executed a will leaving his property to four of his sons excluding the first son Rajagopa1 who was left out because. Annavi "was not pleased with his conduct", Some time in the later part of the year 1943 or early 1944 Annavi s third son Arumugam married the first plaintiff, Pakkiam Ammal who is the first respondent in this appeal. On October 11, 1944 Arumugam executed a document described as a deed of release in favour of his father. This document is as follows:

"Deed of release executed on 10th November, 1944 in favour of V. Annavi Pillai, son of Veeramalai Pillai. Vellala caste. Saivite, Miras. aged about 75 Years and residing at cusba Manaparai. Kulitalai Taluq, Tiruchirapalli district by Arumugham third son of the aforesaid person, of the said caste and religion, aged about 26 years and at present residing at Madura is as follows:

As a result of lack of amity between you and me in family. I have been residing separately at Madura for the last about one year. All the immovable and movable properties, money lending transactions. trade and cash that are at present with you are all your self acauired properties. I have no kind of legal right in them. Even so. I have been asking you to give me something out of them for my sustenance and you have been refusing to give. Ultimately on the recommendation of my mother that I might be given something and on your acceptance of the same. I have on this date received from you Rs. 500 (Rupees five hundred) in cash, in the presence of the Sub-Registrar in full and final settlement of any rights that I may claim in all the properties aforesaid even after your lifetime. I have, hereby, released all the rights that I may claim over all the aforesaid properties. I have no right whatsoever in your immovable properties cash, money lending transactions and business dealing.

To this effect have I executed this release with my whole-hearted consent."

3. This appeal turns on the true meaning and scope of this document.

4. On February 14, 1945 a daughter was born to Arumugam. She is the second plaintiff and the second respondent in this appeal. On October 21, 1946 Annavi Pillai executed a deed caneelling the Will that he made on June 5. 1943 disinheriting his eldest son Raiagonal. In this deed the reason given for cancellation of the Will was that the misunderstanding with Raiagopal had been removed which made execution of another Will necessary for division of the entire property among all the sons. The material part of this deed of cancellation reads as follows: -

"Deed of cancellation of Will executed on the 21st day of October. 1946. by Annavi Pillai, son of, Veeramalai Pillai, Cultivator and merchant, aged 75 years and residing at cusba Manaperai. Sevalur village, Kulitalai Taluk. Tiruchirapalli District is as follows:

"As my eldest son Raiagopalan was giving me trouble. I out of misunderstanding eliminated my eldest son and bequeathed my properties to my other four sons in the Will executed by me on the 5th day of June. 1943. Now the said Raiagopalan had removed