Thottathil B. Radhakrishnan, J.

In this round, we are concerned only with Item No.1 in the plaint schedule. The suit is one for partition. Following earlier order of remit, the claim of the plaintiffs for share in item no.1 was tried again by the Trial Court. Their plea was repelled. Plaintiffs, therefore, appealed. The learned single Judge held that the two plaintiffs were together entitled to 1/3 share in plaint A schedule item no.1, which is hereinafter referred to as the “suit property” and the remaining 2/3 shall go to the first defendant, ignoring the transfer made by the father of the parties in favour of the first defendant. This was done by treating that the suit property was ancestral property in the hands of the father of the parties and that, he had transferred his 1/3 share to the first defendant and hence, the remaining would go as stated above.

2. Parangodan II is the son of Parangodan I. Choyikutty and Kanaran were the sons of Parangodan II. Kanaran died before 1926 leaving behind a son then aged around two years. He is Parangodan III. Later on, Choyikutty married the second defendant and the two plaintiffs and the first defendant were born to them.

3. Ittirarappan Nair and Chennan Nair, whom together we shall call “Nairs” hereinafter, made Ext.A5, a lease (Kanam assignment) on 12.6.1877 in favour of one Parangodan. Twenty two years thereafter, Ext.A6, a renewal lease was made on 18.1.1899 by the Nairs in favour of a Parangodan. As we proceed, we will notice that one of the controversies, or, the only one ultimately, to be resolved is as to whether Ext.A5 lease by the Nairs was in favour of Parangodan I or Parangodan II.

4. Ext.A6 was followed by Ext.A4, a renewal of lease on 30.4.1916 by the Nairs, again in favour of a Parangodan. There is no controversy before us that the Parangodan referred to in Ext.A4 is Parangodan II. By Ext.B5 dated 25.1.1926, Parangodan II assigned the leasehold right in favour of his son Choyikutty and Parangodan III, the son of his predeceased son Kanaran. Twenty years thereafter, the Nairs executed Ext.B1, a renewal of lease, in favour of Choyikutty and Parangodan III on 9.1.1946 essentially recognising Ext.B5 assignment of leasehold right by Parangodan II. Twelve years thereafter, Choyikutty and Parangodan III entered into Ext.B2 partition on 18.2.1958. Nearly 12 years thereafter, Choyikutty executed Ext.B3 assignment on 1.3.1970 in favour of his son, the first defendant assigning to him whatever he had following Ext.B1 partition between him and Parangodan III.

5. The suit from which this appeal arises was filed in 1981 by a daughter and a son of Choyikutty without seeking any relief against Ext.B3 assignment of 1.3.1970 by Choyikutty in favour of the first defendant, however claiming partition of the properties that Choyikutty got under Ext.B2 partition. This was on the premise that what was dealt with by Parangodan II in Ext.B5 was ancestral property and what Choyikutty held following Ext.B2 partition was ancestral property in his hands which would inure to the benefit of the lineal descendants of Choyikutty.

6. Following the order of remit, additional evidence was adduced. The Trial Court, ultimately, concluded that there was no material to hold that the property dealt with by Parangodan II in Ext.B5 was ancestral property or that by the execution of Ext.B5, Choyikutty got any ancestral property in his hands. However, the learned single Judge allowing the appeal of the plaintiffs in part, set aside that finding and has ordered the grant of decree for partition of the suit property as already noted.

7. On the basis of the arguments addressed before us impeaching the finding of the learned single Judge, the only issue that arises for consideration is as to whether the suit property is ancestral property in which the plaintiffs could claim a share and if that were so, could they seek partition without seeking any relief against Ext.B3 assignment by Choyikutty in favour of the fir