JUDGMENT :- This Second Appeal is directed against the decree and judgment in A. S. 61/1990 of the Subordinate Judge, Sulthan Bathery, which was filed against the judgment and decree in O. S. 65/1988 of the Munsiff's Court, Kalpetta.

2. The appellants are defendants 1 and 3 to 6 and the respondents are the plaintiffs and 2nd defendant.

3. The facts for the purpose of this appeal are as follows : The plaintiffs, who are respondents 1 and 2 herein, filed the above suit for partition. The plaintiffs are the children of deceased Jinachandra Gowder through his first wife and defendants 2 to 6 are the children through his second wife, who is the first defendant. Item No. 1 of the plaint schedule property was allotted to Jinachandra Gowder as per registered partition deed executed on 20-1-1958. Item Nos. 2 and 3 were purchased by Jinachandra Gowder utilising the income derived from item No. 1. Item Nos. 4 and 5 were excluded from the partition deed of the year 1958. Thus, the entire plaint schedule properties jointly belong to the plaintiffs and the defendants after the death of Jinachandra Gowder. The parties are governed by Hindu Mitakshara Law. On the allegation that after the death of Jinachandra Gowder the defendants are taking income, the plaintiffs filed the above suit for partition and recovery of possession with mesne profits. It is also alleged in the plaint that the defendants had already sold timber worth Rs. 26,000/- from the plaint schedule property. So, they claimed 2/16 share over the plaint schedule property and also over the money obtained by sale of the timber. Jinachandra Gowder had deposited Rs. 13,870/- at Varadoor Co-operative Bank. The plaintiffs also claim share over the said money.

4. Defendants 1 to 3 filed written statement. They would contend that as per the registered partition deed of 1958, the plaintiffs and the second defendant had taken their share from the joint family property and virtually they were separated from the joint family. At the time of partition, there were only four male members, including Jinachandra Gowder. As per the partition deed, the members got themselves separated and hence the property allotted to the share of Jinachandra Gowder has become his separate property and thereafter 5th defendant was born to Jinachandra Gowder through his second wife and thereby another joint family has come into existence. Item Nos. 4 and 5 were set apart to the share of the second defendant and the same was gifted to the 5th defendant. The plaint schedule items 1, 4 and 5 were managed by deceased Jinachandra Gowder. According to the defendants, since the plaintiffs and second defendant were separated from the joint family, they are not entitled to get any share as prayed for in the plaint. The allegation that Jinachandra Gowder had exclusive right for half share over the plaint schedule property is not correct. After the death of Jinachandra Gowder, the first defendant and her children are entitled to his share as per Section 6 of the Hindu Succession Act, hereinafter referred as "Act XXX of 1956". They also denied the allegation that the timber from the property was sold for a consideration of Rs. 26,000/-. Even the deposit alleged in the plaint is also not correct.

5. The trial Court framed six issues and examined P. W. 1 and D. W. 1 and marked Exhibits A1 to A3 and decreed the suit by a preliminary decree for partition. It was decreed that the scheduled properties shall be divided into 16 shares and 2/16 shares shall be allotted to the plaintiffs jointly. They were also allowed to realise mesne profits for the last four years prior to the date of suit and also for future mesne profits that will be decided in the final decree proceedings. Aggrieved by the said decree and judgment, the defendants 1 and 3 to 6 filed A. S. 61/1990 before the Sub Court, Sulthan Bathery. The learned Sub Judge dismissed the appeal, upholding the preliminary decree passed by the trial Court. Hence, the Second Appea