1. The plaintiffs in O.S. No. 624 of 1976 are the appellants on the dismissal of the suit by the learned I Additional Subordinate Judge, Coimbatore, by judgment dated 24.4.1980. I do not want to burden the judgment by reference to the pleadings of parties in detail. The matter lies in a very narrow compass and therefore, it will suffice to mention a few facts.

2. One Kulanda Gounder had a son Arumugha Gounder. Arumugha Gounder had three sons, Ramaswamy Gounder, Kumaraswami Gounder and Kalikutti Gounder. The first son Ramaswamys wifes name is Velakkal. Kumaraswami, the second son had three wives Pongiathal, Arumughathammal and Sinnammal. Apparently, the first wife had no issues. Through the 3rd wife Sinnammal, Kumaraswami had a son Shanmugaswami, who is the first defendant in the suit. Ist defendants son is second defendant Palanikumar. Kalikutti Gounder is the third and youngest son of Arumugha Gounder. The first son Ramaswamy Gounder had two sons Kulande Gounder and Arukutti Gounder, who is the third defendant in the suit. This third defendant had two wives namely Periakkal and Subbathal (D7 in the suit). Through the first wife, he has Ramaswami alias Ramalingam who is 1st plaintiff in the suit, and Lakshmi, and through the second wife Subbathal, he has Kaliammal, Kurundachalam and Saraswathi. Kurundachalam is 2nd plaintiff in the suit.

3. Therefore, Arukutti Gounder who is acting behind the scene, had caused the suit tobe instituted by his son Ramaswamy alias Ramaliangam through his first wife and the second plaintiff (Kurundachalam) through the second wife. The geneology shows in short, the relationship of the parties. (Geneological tree is shown as “Annexure A”).

4. The plaintiffs 1 and 2 have come forward with the case that items 1 to 6, and 7 to 10 in the suit properties are joint family properties and they remained joint on the date of suit and therefore, they are entitled to 1/9th share in the suit properties. Before the case of the plaintiffs is considered, we have to notice a few documents to consider the facts leading to the filing of the plaint. Under Ex. B7, dated 3.11.1928, there was a Muchalika executed by Ramaswamy Gounder and two others, i.e., a document by three brothers which refers to the fact that the parties had agreed to divide their properties as per the decision of the Panchayatdare. On 28.12.1928 under Ex. A3 Ramaswamy Gounder, the eldest son of Arumugha Gounder executed a sale deed with reference to his undivided share in favour of the second wife of Kumaraswami Gounder Ammughathammal, that is, with reference to items 1 to 6 in the plaint schedule. On 21.2.1929 under Ex. A4, a Trust deed is reported to have been executed by Ramaswami Gounder in favour of his elder son Kolanda Gounder covering items 7 to 9.

5. It appears in the evidence that the three brothers Ramaswamy, Kumaraswami and Kalikuni were living separately, and after 1929, they do not appear to have lived as members of joint family. Ramaswamy, eldest son of Arumugha Gounder died in 1932. Kalikutti Gounder, the third son died in 1935 and Kumaraswami Gounder, the 2nd son died on 16.5.1940. Items 7 to 10 in the properties are claimed by the plaintiffs to be available for partition on the ground that they belongto Kalikutti Gounder, the youngest son of Arumugha Gounder, who died issueless intestate and therefore, those items would come to Ramaswami and Kumaraswami not by survivorship but by succession.

6. Therefore, case of the plaintiffs avoiding all other facts, are:

No. 1: Items 1 to 6 belong to Ramaswamy Gounder under Ex. A3 dated 28.12.1928, was sham and nominal and therefore, available for partition.

No. 2: Items 7 to 10 as stated above: the plaintiffs are entitled to partition as their their father and Kumaraswami succeeded to the estate of Kalikutti.

7. The learned First Additional Subordinate Judge, though has come to the correct conclusion, has not appreciated the facts in the proper perspective and he has mixedup things with