The appellant is the second wife of one Sadasiva Subbaraya Mudaliar, the fifth respondent herein, whose sons through the third wife are respondents 1 to 4 herein. The appellant herself has a son through the fifth respondent. She filed O.S. No. 27 of 1954 on the file of the Subordinate Judge’s Court, Chittoor, as next friend and guardian of her minor son, for partition of his share and maintenance for herself. During the pendency of the suit, the appellant’s son became a major and he settled his claim with the fifth respondent and obtained his share from the family properties, and the appellant herself withdrew her claim for maintenance with liberty to file a separate suit for that purpose. The appellant thereafter filed O.S. No. 13 of 1958 on the file of the Court of the District Munsif, Tiruttani, and on 31st August, 1959, she obtained a decree for maintenance at the rate of Rs. 15 per month and a sum of Rs. 10 per year towards clothing and the amount decreed in her favour was charged against certain items of joint family properties mentioned in that decree. Thereafter respondents 1 to 4 herein filed the present suit for partition of their 4/5ths share in the joint family properties impleading their father the fifth respondent and the appellant herein as defendants. In paragraph 7 of the plaint they contended as follows:

“The plaintiffs after due enquiry have come to know that the second defendant had filed a pauper O.P.No. 21 of 1957 which was later numbered as O.S. No. 13 of 1958 in this Honourable Court against the first defendant alone for maintenance past and future and claims for separate residence and obtained a decree against the first defendant alone on 31st August, 1959 creating a charge over the plaint B schedule properties for the maintenance claim past and future. Inasmuch as the plaintiffs were not impleaded as necessary parties by the second defendant in that maintenance suit O.S. No. 13 of 1958, the decree creating a charge in the entire plaint schedule joint family properties in O.S. No. 13 of 1958 will not bind the plaintiffs to the extent of their 4/5ths share in the said properties. The action of the second defendant in collusion with the first defendant in bringing the plaint B schedule properties to sale is highly illegal inasmuch as the plaintiffs’ 4/5ths share in the plaint B schedule properties are concerned.”

In the end the plaintiffs prayed for “a preliminary decree declaring that the plaintiffs are entitled the 4/5ths share in the plaint schedule mentioned properties”, for appointing a Commissioner to divide the plaint properties into five equal shares and to allot four such shares to the plaintiffs and to direct the defendants to deliver possession of such divided 4/5ths share to the plaintiffs or to take delivery of possession through process of Court. Naturally the fifth respondent remained ex parte arid the appellant alone defended the suit. Taking into account the pleadings of the parties, the learned District Munsif framed five issues, the fourth of which is as follows:

“Whether the charge created in O.S. No. 13 of 1958 is not binding on the plaintiffs’ share in the properties?”-

The learned District Munsif by his judgment and decree, dated 30th December, 1961 held that the charge created in O.S. No. 13 of 1958 was binding on the plaintiffs and passed a preliminary decree in favour of the plaintiffs subject to the charge created over their shares also in O.S. No. 13 of 1958. Against this judgment and decree, respondents 1 to 4 herein preferred A.S. No. 86 of 1962 on the file of the Court of the District Judge of Chingleput. The learned District Judge came to the conclusion that the charge created in O.S. No. 13 of 1958 will not bind the shares of respondents 1 to 4 herein and in that view allowed that appeal preferred by them and modified the decree of the learned District Munsif so as to make it clear that the shares allotted to respondents 1 to 4 herein in the joint family propertie