Due to not ascertaining shares of co-owners preliminary decree passed in a suit for partition set aside.

G. Ramanujam, J.

1. This appeal has been filed against the judgment and decree in O.S. No. 34 of 1975 on the file of the Sub-Court, Sivaganga, by defendants 10,16 and 18 and legal representatives of the 13th defendant and the plaintiffs and 14th defendant have filed Memorandum of Cross-Objections, questioning the judgment of the lower court, so far as it is against them.

2. The suit has been filed by respondents 1 and 2 herein for partition and separate possession of their alleged 112/960 share in the suit properties. The suit properties consisted of schedules A and B. A schedule consisted of 5 items of house properties and B schedule consisted of 25 items of lands. The plaintiff's case as set out in their plaint are as follows:

3. Their senior maternal grandfather, Kadar Baksha (herein after referred to as senior Kadar Baksha) his two brothers, Peer Mohammed (Plaintiffs' maternal grand father) and Ayyadurai Rowther, carried on a joint and common business in the fashion of Hindu families. From the profits earned there from, properties had been acquired in the name of senior Kadar Baksha for the benefit of the entire family. Later after the death of senior Kadar Baksha, Syed Mohammed, son of Ayyadurai Rowther had been acquiring properties in his name from and out of the income from the said joint business. The properties purchased in the name of senior Kadar Baksha and later in the name of Syed Mohammed Rowther were being enjoyed as joint properties of all the three branches. The income from 'the A and B schedule properties have always been divided between the three branches and enjoyed by every sharer. Plaintiffs and defendants 15,16 and 17 belonged to the branch of Peer Mohammed and as such are entitled to 1/3rd share in all the suit properties. Defendants 1 to 14 as one group under Senior Kadar Baksha are entitled to another 1/3rd share, and defendants 18,19 and 20 representing Ayyadurai's branch are entitled to the remaining 1/3rd share. Though patta for some of the suit properties stood in the name of senior Kadar Baksha and some in the name of Syed Mohammed Rowther, those properties have all along been treated and enjoyed as belonging to all the members of the three branches. However, the male members in the three branches have chosen to assert their exclusive right in the suit properties and to deny the right of the female members therein. The plaintiffs are therefore constrained to file the suit for partition and separate possession of their 112/960 share in the suit properties.

4. The claim of the. plaintiffs has been supported by all other female members in the three branches, except 15th defendant, who is none-else than the sister of the plaintiff. The defendants who are supporting the plaintiffs' claim are the defendants 1,2 to 5,6,7,8,17 and 19. The first defendant is the daughter of senior Kadar Baksha and she contends that all the females in the three branches are entitled to claim a share in the suit properties and that their rights have not been lost. She has prayed for partition of her share and has also paid the court-fee. Defendants 2 to 5 are the grand daughters and grandsons of senior Kadar Baksha through his daughter Ayisha Beevi and they claimed that they are entitled to shares in the common properties through their mother and that their mother's sister Muthupillai has released her right in favour of the 2nd defendant, under document dated 16.10.1971 and therefore the second defendant would get the share of Muthupillai besides his normal share. The 6th defendant (Ammer Beevi) another granddaughter of Senior Kadar Baksha claims that her mother Maimbon Beevi has got a share, that their mother's sister Ravia Beevi, who predeceased Maimbon Beevi had no right, that Ravia Beevi's children (defendants 7 and 8) did not have any right, and therefore, she has obtained the whole share of her mother Maimbon Beevi. She has also paid the Court-fee for division of her share as claimed by her. Defendants 7 and 8 hav