JUDGMENT :

SUNITA AGARWAL, J

1. A short question for consideration in this appeal is as to whether the appellant would be entitled to half share in the property of his father who is still alive and can seek a decree of partition on the premise of the property in question being ancestral/joint family property.

2. The facts in brief are that the Original Suit No.1698 of 1997 was filed on behalf of the appellant as minor through his mother being natural guardian seeking relief of partition and possession of half share claimed by the appellant in the suit property, which is the land admeasuring 1811 sq. ft. (described at the foot of the plaint). It was pleaded on behalf of the plaintiff/appellant that the suit property being joint family property belonging to his grandfather namely late N. Ramakrishnan, has been inherited by him along with his father who was the first defendant in the suit.

3. As averred in the plaint itself, the first defendant’s sister G. Lalitha filed a suit namely C.S. No.1728 of 1993 for partition and possession of the divided share of N. Ramakrishnan, i.e., the grandfather. The suit was decreed on the basis of a compromise dated 03.02.1994, whereunder the first defendant had got his share in a land to the extent of 1811 sq. ft.

4. Original defendant nos. 2 and 3 are purchasers of the suit property vide sale deeds dated 03.04.1997 and 17.04.1997 executed by the first defendant. As per the plaint averments, the plaintiff/appellant herein while seeking to establish his entitlement to half share in the suit property would plead that the first defendant was trying to alienate the suit property to deprive the valuable right of the plaintiff/appellant to the same. However, there is no challenge to the compromise decree dated 03.02.1994 or the aforementioned sale deeds executed in favour of defendant nos. 2 and 3. Only relief sought was for partition and possession of half share to the plaintiff/appellant herein in the suit property.

5. The suit was contested by defendant nos. 2 and 3, on the ground that the first defendant was absolute owner by virtue of the compromise decree dated 03.02.1994 and the defendants had paid sale consideration and had taken possession of the suit property and are enjoying the same since the date of purchase.

6. The learned II Additional Judge, City Civil Court, Chennai passed the preliminary decree of partition which was challenged in the first appeal filed by the original defendant nos. 2 and 3.

7. The facts considered by the First Appellate Court in setting aside the preliminary decree of partition granted by the Trial Court are that the property originally belong to the father of the first defendant by name late N. Ramakrishnan. The plaintiff/appellant is son of the first defendant/respondent and being minor is represented by his mother and natural guardian.

8. The plaintiff was born on 06.01.1994 and the suit for partition and possession of properties belonging to N. Ramakrishnan was filed by the first defendant’s sister namely G. Lalitha in the year 1993. The first defendant did not contest the suit filed by the appellant and had executed two sale deeds in favour of the defendant nos. 2 and 3 with regard to the property which he obtained as a result of the partition decree under the compromise dated 03.02.1994.

9. The question answered by the First Appellate Court is as to whether the plaintiff acquired right by birth in the property which fell into the share of the first defendant/his father and as such is entitled to the decree of partition as prayed for. Considering decisions of this Court, the First Appellate Court has held that as per the Class I heirs listed in the Schedule under Section 8 of the Hindu Succession Act, 1956, the son of a male dying intestate will become an absolute owner of the property which he derives from his father and holds the property as absolute one and his son has no right by birth over such property.

10. It was held that when property devolved upon the divided