Ramaswami, J.- The plaintiff, who lost before the trial Court, the first appellate Court as well as before Ramakrishnan, J., in second appeal, is the appellant before us in this Letters Patent Appeal. The suit is one for declaration and possession with future mesne profits in respect of certain lands which the plaintiff purchased from one Velayutham Pillai under the sale deed Exhibit A-1 dated 25th July, 1957. All the Courts have held that the plaintiff’s remedy, if any, is only a suit for general partition with an equity for having the suit properties allotted to the share of his vendor Velayutham Pillai inasmuch as, on the date of sale, he was not the owner of the suit properties but only bad a 1/3 share in the family properties including the suit properties and that the suit for possession of the specific properties should fail. The matter turns upon the effect of an order under Order 32, rule 12 of the Code of Civil Procedure, in a suit for partition in which a preliminary decree has already been passed, regarding the status of the members of the joint family. Whether the division in joint family status already brought about is nullified and the members restored to their status of joint family members by the order under Order 32, rule 12, Code of Civil Procedure, dismissing the suit (even though a preliminary decree for partition had already been passed), is the question.

2. The facts are these: Velayutham Pillai, the vendor under Exhibit A-I in favour of the plaintiff, one Ambalavana Pillai and one Nellaiappa Pillai are the sons of one Muthiah Pillai. The father Muthiah Pillai died in the year 1933. The three brothers admittedly were members of a joint Hindu family and the family owned several items of immovable properties. In 1941, when Nellaiappa Pillai, one of the three brothers, was a minor, O.S. No. 35 of 1941 was filed on the file of the Court of the Subordinate Judge, Tirunelveli, on behalf of the said minor Nellaiappa Pillai by his uncle acting as his next friend. To this suit, the other two brothers, viz., Velayutham Pillai and Ambalavana Pillai, as well as Kanthimathi Ammal, the mother of the parties, had been impleaded as defendants. A preliminary decree for partition declaring that the minor plaintiff, viz., Nellaiappa Pillai, and the other two brothers, Velayutham Pillai and Ambalavana Pillai, are each entitled to a 1/3 share in the various items of suit properties was passed. The preliminary decree also made certain provision towards the maintenance of Kanthimathi Ammal, the mother of the parties. After the passing of the abovesaid preliminary decree but before any one applied for passing a final decree, Nellaiappa Pillai, the minor plaintiff in the suit, attained majority. Then he filed I.A. No. no of 1944 in O.S. No. 35 of 1941 Under Order 32, rule 12, Code of Civil Procedure, electing to abandon the suit. Upon that, the Court appears to have passed an order dismissing the suit. The said Nellaiappa Pillai died in April, 1945 leaving no widow or issue.

3. Very many years later (i.e.), in the year 1957, Kanthimathi Ammal, the mother of the parties, filed I.A. No. 278 of 1957 in the abovesaid suit for having the suit restored to file. By that time, Ambalavana Pillai, one of the three brothers was not heard of for several years. It is stated that his whereabouts are not known since 1948. In I.A. No. 278 of 1957, Kanthimathi Ammal pleaded that on the death of Nellaiappa Pillai in 1945 and on the civil death of Ambalavana Pillai who is not heard of for a long number of years, their two shares had devolved on her and that the suit should be restored to file and a final decree passed giving her 2/3 share in the property, while the remaining 1/3 share should go to the only remaining son, Velayutham Pillai. This application, which was resisted by Velayutham Pillai, ultimately came to be dismissed mainly on the ground that the order in I.A. No. no of 1944, the application under Order 32, rule 12, Code of Civil Procedur

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