Plaintiff ought to have taken steps first for cancellation of the alienations.

This appeal has been preferred by the writ defendant in O.S.No.136 of 1984 on the file of the Sub Court, Madurai. Heard Mr.T.R.Rajaraman, learned counsel appearing for the appellant Mr.R.Dhamodharan, learned counsel appearing for the respondents 1 and 2, M/s.Iyer and Dolia appearing for the 7th respondent Mr.S.Sundaragopal, learned counsel appearing for the 8th respondent and Mr.N.Visakamurthy, learned counsel appearing for respondent No.11.

2. For convenience, the parties to this appeal shall be referred as arrayed before the trial Court.

3. The case of plaintiffs: The minor plaintiffs 1 and 2 through their mother and next friend instituted the suit O.S.No.136 of 1984 seeking the relief of partition and separate possession of 2/5th share in items 1 and 2, 2/3rd share in items 3 and 4 of the plaint schedule and for a direction to pay mesne profits. The first defendant is the father of the plaintiffs. The minor plaintiffs and defendants 1 to 5 are members of the joint family who belong to Ramayana Chavadi Yadava community in Madurai Town, their family occupation being agriculture and trading in milk, cows and buffaloes. The 5th defendant is the mother of defendants 1 to 3. The 4th defendant is the daughter of the 5th defendant and s1ster of defendants to 3. Mieyana Konar father of defendants 1 to 4 and husband of the 5th defendant died intestate and the properties left by him is governed by intestate succession unde The Hindu Succession Act, 1956.

4. The defendants 1 to 4 entered into a partition arrangement of the house properties alone under a registered partition deed dated 30th September, 1982. The 5th defendant abandoned her claim of share in the said house property and was content with the right to be maintained by the defendants 1 to 3. The agriculture lands were partitioned under the reg1stered deed dated 30.9.1982 which are described as suit items 1 and 2. The defendants 1 to 4 are each entitled to 1/5th share in those items and the plaintiffs being the sons of the first defendant, are each entitled to 1/15th share in items 1 and 2 of the plaint schedule.

5. Items 3 and 4 are the house properties allotted to the share of the first defendant as per the partition deed dated 30.9.1982 which is described in C Schedule to the partition deed. The property allotted to the share of the defendants 2 and 3 have not been included in the present suit claim. A sum of Rs.18,464 being the fixed deposit with the 8th defendant, which is suit item No.5. So also the 7th item which is a fixed deposit with the 9th defendant-Bank which stands in the joint names of the first defendant and his wife. They are also joint family properties in which the plaintiffs are entitled to a share.

6. The 6th item is a Matador van acquired by the first defendant after partition from and out of the income of the joint family properties viz., items 1 to 4 in which the plaintiffs are also entitled to 1/15th share each. It is further pleaded that the first defendant had abandoned the family and is leading immoral life and was closely associated with one Thiagarajan in his immoral pursuits. Items 1 and 2 are valuable and extensive properties and the first defendant is in receipt of share of income from House and landed properties.

7. The plaintiffs alleged that the first defendant had executed a mortgage deed on 23.4.1983 within seven months from the date of partition in favour of the 6th defendant, which mortgage is not supported by consideration and which encumbrance is not for the benefit, nor for any necessity, nor it is building on the plaintiffs. Hence, the plaintiffs are entitled to ignore the existence of the said mortgage and also claimed 1/3rd share act in plaint item 3. Closely following the mortgage on 23.4.1983, the first defendant on 8.7.1983 had purported to have executed a sale deed for a consideration of Rs.48,000 in respect of item 4 of the plaint in favour of the 7th defendant. The market value of the property is more than two lak