These are connected appeals and can be disposed of by a common judgment. S.A. No. 486 of 1946 arises out of O.S. No. 398 of 1943 on the file of the court of the District Munsiff of Gobichettipalayam in which the appellants were defendants 1 to 5. The fifth appellant having died pending the second appeal, the sixth appellant was brought on record as his legal representative. The appellants in S.A. No. 487 of 1946 which arises out of O.S. No. 119 of 1943 on the file of the same District Munsiff’s Court were the plaintiffs and defendants 2 and 3 in that suit. The contesting respondent in both the second appeals is the same individual and he was the plaintiff in O.S. No. 398 of 1943, and the first defendant in O.S. No. 119 of 1943. In order to appreciate the contentions of the parties, it will be convenient to set out the relation between them as shown in the plaint in O.S. No. 398 of 1943 and set out in the judgment of the learned Subordinate Judge in paragraph 12 of his judgment.

O.S. No. 398 of 1943 was filed by the contesting respondent for specific performance of an agreement for partition entered into between him and defendants 1 and 2 therein on the 14th July, 1941, and for possession of the plaint B-1 schedule properties. The contention of the defendants therein was that the agreement was invalid and not binding and that the grandfather of the plaintiff and defendants 1 and 2 (the sixth defendant) had not renounced his right in the joint family properties. The trial Court found that the sixth defendant did not relinquish his share in the joint family properties. It also found that the agreement of partition on which the plaintiff based his case, Ex. P-2 was invalid and inoperative for various reasons, one of them being the inequality in the division of the properties and therefore O.S. No. 398 of 1943 was dismissed. With regard to O.S. No. 119. of 1943, the learned District Munsiff held that it has to be decreed. The plaintiff in O.S. No. 398 of 1943 took up the matter in appeal and the learned Subordinate Judge finding that the relinquishment by the sixth defendant was true, and that as between defendants I and 2 on the one side and the plaintiff on the other, Exhibit P. 2 was an operative and valid document, decreed the suit in reversal of the decision of the District Munsif.

On the basis that the sixth defendant had not relinquished his share in the family properties, he had sent a registered notice on 27th January, 1942, to his grandsons expressing his intention to divide; and thereafter on 6th February, 1942, he executed a settlement deed in favour of his great grandsons defendants 3 to 5 in O.S. No. 398 in respect of his one-third share in the plaint properties. On the basis of this settlement, defendants 3 to 5 in O.S. No. 398 filed O.S. No. 119 of 1943 for partition and recovery of possession of the one-third share of their great grandfather settled upon them under Ex. D-1 dated 6th February, 1942. The plaintiff in O.S. No. 398 was the contesting defendant there and he repudiated the alleged settlement on the ground that long prior to that, the settlor, Ammavasai Goundan, had relinquished his share in the family properties. As the District Munsif had found that the alleged relinquishment did not take place, he gave effect to the settlement and passed a preliminary decree for partition in favour of the plaintiffs in O.S. No. 119 of 1943. As stated already the plaintiff in O.S. No. 398, who was the first defendant in O.S. No. 119 of 1943, aggrieved by this preliminary decree for partition, filed an appeal in which the same question had to be discussed. The appeals against O.S. Nos. 398 and 119 of 1943 were A.S. Nos. 78 and 86 of 1945, respectively. They were heard together by the learned Subordinate Judge who allowed both the appeals with the result that O.S. No. 398 was decreed in favour of the plaintiff and O.S. No. 119 was dismissed. Hence the two second appeals by the defendants 1 to 5 in O.S. No. 398 of 19