Plaintiff can sue for partition without prayer for setting aside sale deed.

The appellants are the defendants. Through this second appeal, they seek to set aside the judgment and decree made in A.S.No.67 of 1985 on the file of the learned Subordinate Judge, Ramanathapurm, confirming the judgment and decree passed by the District Munsif, Paramakudi, in O.S.No.120 of 1982.

2. Pappammal alias Savariammal, the first respondent was the plaintiff. She filed O.S.No.120 of 1982 on 12. 1982 before the District Munsif, Paramakudi, for partition and separate possession of her half share in the suit properties, to direct the defendants 1 to 3 to render accounts for 14 years from 11. 1964 and to pay her half share in the income for three years prior to the date of suit and for mesne profits from the date of plaint till the date of possession.

3. According to the plaintiff, the suit properties belonged to her maternal grandmother Thomayee Ammal, who died leaving behind her three sons, viz., Savarimuthu, Irudhayasamy and Jayaraj and four daughters, viz., Thiresammal (mother of the plaintiff), Mariasironmani (first defendant), Mariammal and Arulayee Ammal (fourth defendant). After the death of Thiresammal, the said three sons executed a release deed dated 11. 1964 in favour of their three sisters and the plaintiff, the daughter of another sister Thiresammal. Thus, the plaintiff is entitled to 1/4th share in the suit properties as heir to her mother.

4. On 11. 1964, the plaintiff and other three maternal aunts executed a power of attorney empowering Gnanamuthu Konar, the husband of first defendant Mariasironmani Ammal to manage the suit properties with the power to alienate the properties for necessity of the family. Mariammal, one of the aunts, on 19. 1974 executed a Will bequeathing her 1/4th share in favour of the plaintiff. Consequently, the plaintiff would be entitled 1/2 share in the suit properties.

5. In the meantime, the said Gnanamuthu Konar, the Power of Attorney sold suit item No.1 to 9th defendant on 110. 1967, suit item No.3 to 7th defendant on 26. 1974, suit item No.9 to 6th defendant on 6. 1971 and suit item No.11 to 5th defendant on 28. 1967 respectively even without the knowledge of the plaintiff. Moreover, her Power of Attorney did not render accounts or pay income for 14 years from 11. 1964 till his death on 112. 1978.

6. In the year 1982, the plaintiff sent a notice to the defendants asking for her half share in the suit properties. Reply was sent only on behalf of the defendants 1 to 3 and 5 to 7 with false allegations. As the sale of the above suit items was not known to the plaintiff, they are not binding on her. Hence, the suit for partition and separate possession and for mesne profits.

7. Though written statement has been filed by the defendants 1 to 3 and 5 to 8, the 4th defendant, who is one of the maternal aunts of the plaintiff, did not choose to appear before the court.

8. The defendants 1 to 3 and 5 to 8 resisted the suit by filing two separate written statements. According to them, Mariammal did not execute and never intended to execute any Will in respect of her share in the suit properties in favour of the plaintiff. The alleged Will dated 19. 1974 of Mariammal is not valid. The alienations made in favour of the defendants 5 to 9 in respect of the suit items 1, 3, 9 and 11 by Gnanamuthu Konar, the Power of Attorney, are valid and binding on the plaintiff, since the said alienations were made for necessity of the family, for litigation expenses in O.S.No.402 of 1964 and A.S.No.4 of 1966 in respect of the suit properties, for medical expenses of the husband of Mariammal from 1965 of 1969, for marriage of the 4th defendants daughter, for digging a well and installation of pumpset for the 4th defendant and for the maintenance and family expenses of the plaintiff and Mariammal. The plaintiff is well aware of the said alienations. By her conduct, she acquiesced and accepted the alienations. The defendants 5 to 9 are continuously in separate possession and enjoyment to t