( 1 ) THE two unsuccessful plaintiffs are the appellants. They are theson and daughter respectively of the first defendant. The parties as arrayed in the lower Court are described in the appeal as well. Their suit for partition was dismissed. Thus they filed this appeal.

( 2 ) THE undisputed facts are that the second defendant is the fatherof the first and third defendants. The appellants are the children of the first defendant. The second defendant died pending appeal. His widow, the fourth respondent, and his two daughters, the fifth and the sixth respondents, are impleaded as legal represntatives. They are also termed as defendants Nos. 4, 5 and 6 for the purpose of continuity. a schedule property consists of immovable properties of an extent of Ac. 33-71 cents. b schedule property consists of movables and cash and their total value is rs. 35,300/ -. The extents of these lands and their existence have not been disputed.

( 3 ) THE case of the plaintiffs is that all these properties are coparcenaryproperties; and that by birth the first plaintiff is entitled to his share in the coparcenary. The 2nd plaintiff is entitled to maintenance and marriage expenses. The defendants pleaded a prior partition on March 31, 1974 as evidenced by the partition lists, Exs. B-l to B-3, so as to non-suit the plaintiffs. They have also stated that item No. 13 is alleged to have been purchased by the second and the third defendants under Ex. B-16, the agreement of sate, dated April 25, 1974 and this item was disbelieved by the Court below; that item Nos. 1 and 9 were purchased by the fourth defendant and they are, therefore, her separate property: and that item No. 12 was stated to have been given in the partition, dated March 31, 1974, to the mother of the second defendant towards her maintenance and this is also not available for partition.

( 4 ) THE trial Court disbelieved the partition, dated March 31, 1974and the partition lists, Exs. B-1 to B-3, for varied reasons. I find that the reasons are cogent. When the suit notice, Ex. B-12 was given to defendants nos. 1 to 3 claiming partition, a reply was given under Exs. A-1 and A-2 by defendants Nos. 2 and 3. In the reply no whisper had been made regarding the prior partition. As on that date there is obviously no partition at all. In the written statement they pleaded prior partition. But the partition lists, exs. B-1 to B-3, were not filed along with the written statement. Therefore, even by that date they have not fabricated Exs. B-1 to B-3. Apart from these stark facts, oral evidence was adduced. The trial Court has given cogent reasons to believe their evidence. Accordingly, I hold and confirm for the same reasons that the prior partition is a myth proposed up to denude the plaintiffs of their share in the coparcenary. The lower Court has given cogent reasons to disbelieve the agreement of sale, Ex. B-16, dated April 25, 1974, under which the second and third defendants claimed to have purchased item No. 13 of the plaint schedule property. I have carefully examined the evidence and I accept the same. So, item No. 13 is available for partition. With regard to items 1 and 9, the properties were admittedly purchased by the fourth defendant. She was not made a party to the suit. She has been deprived of her right to defend. They have claimed that the property was benami. In the absence of the fourth defendant being impleaded and given her an opportunity to defend her title acquired for item Nos. 1 and 9, they cannot be considered to be part of the joint family property. They are accordingly liable to be excluded.

( 5 ) SRI Parvatha Rao, learned counsel for the appellants stated thatthe mother ofthe second defendant pre-deceased him. Though she was entitled to maintenance during her life time, in view of the Fact that the very basis that she was allotted item No. 12 under oral partition, dt. March 31, 1974, has been knocked off its bottom, that item is also available for parti