Applicability of the provisions of Section 2 of the Act.

Srinivasan, J.

1. A score and a year ago, the foundation for the present appeals was laid by the institution of a suit for partition in the Court of the Subordinate Judge, Tirunelveli. The sixth defendant in the suit is the appellant in both the appeals while the plaintiffs are the respondents.

2. It is better to have the genealogy of the family to which the parties belong in order to appreciate the facts comfortably hereunder.

3. There was an earlier litigation in the family in O.S. No. 50 of 1925 which ended in a compromise decree whereby Palanikumar Pillai and his seven sons divided their joint family properties. After the death of Palanikumar Pillai, there was a family arrangement on 2.1.1926 under which his second wife Ponnammal was to enjoy the properties described in Schedules I and III in the present suit for her life. It was also agreed that after her lifetime, the 1st Schedule was to be taken absolutely by the seven sons of Palanikumar Pillai and the III Schedule was to be taken exclusively by Subbiah Pillai, the eldest son of Ponnammal. While the appellant is the son of Subbiah by his first wife, respondents 3 to 6 are the sons by his second wife who is the 7th respondent. The contest in these appeals is one directly between the appellant on the one hand and respondents 3 to 7 on the other.

4. Continuing the narrative, the III Schedule was allotted to Subbiah on condition that he should pay a sum of Rs. 214 to each of the other six sons of Palanikumar Pillai by way of owelty on the footing that the value of the III Schedule property which is a small house with some appurtenant land was Rs. 1,500. There was a partition arrangement under a deed dated 26.10.1942 between Subbiah Pillai and his sons by the second wife on the one hand and the appellant herein on the other with reference to the properties allotted to Subbiah Pillai in the compromise decree in O.S. No. 50 of 1925. The present suit properties were not subject-matter of that partition as Ponnammal was alive. Subbiah Pillai died in 1951 and Ponnammal died on 17.8.1966.

5. Thereafter, the present litigation was initiated by the plaintiffs, the first of them being a grandson of the first wife of Palanikumar Pillai, the second being the last son of Palanikumar Pillai by his second wife and the rest being Subbiah Pillai's second wife and her sons. The plaintiffs prayed for partition and separate possession of 91-1/2 cents in item 1 of the I Schedule, 5/12 share in item 2 of the I Schedule and 5/12 share in the II Schedule and 3/8 share of plaintiffs 1 and 3 to 7 in item 3 of the I Schedule. They also prayed for allotment and separate possession of the III Schedule to plaintiffs 3 to 7. As regards the III Schedule house, with which we are now concerned, it was the case of the plaintiffs that the appellant herein had relinquished his interest therein under the partition arrangement dated 26.10.1942 referred to earlier. It was on that basis, they prayed for allotment of the house entirely to plaintiffs 3 to 7. The appellant resisted their claim. It was found by the trial Court as well as the appellate Court that the appellant had relinquished his interest in the III Schedule property under the partition of 1942 and consequently the title of plaintiffs 3 to 7 to the III Schedule house was declared subject to their payment of Rs. 214.28 to each of the other six sharers, viz., plaintiffs 1 and 2 and defendants 1 to 4 in the suit. The appellant herein filed Second Appeal No. 854 of 1971 in this Court and by judgment dated 23.8.1973, this Court held that there was no relinquishment by the appellant of his 1/6th share in the III Schedule property. As per the judgment of this Court, the appellant was declared entitled to 1/42 share in Schedule I and 1/6 share in Schedule III.

6. The plaintiffs filed I.A. No. 146 of 1972 on the file of Sub Court, Tirunelveli for passing a final decree even while the Second Appeal was pending in this Court. That application was dismissed fo