( 1. ) THIS appeal is directed against the judgment and decree passed by the First Appellate Court in A.S.No.7 of 2004 dated 26.11.2004 in confirming the judgment and decree passed by the trial court in O.S.No.146 of 1998 dated 27.10.2003 in passing preliminary decree for partition.

( 2. ) THE appellant herein is the plaintiff and the respondents are the defendants before the trial court.

( 3. ) THE case of the plaintiff before the trial court would be as follows:- THE plaintiff and the defendants are the legal heirs of late K.M.Selai Gowder. THE defendants 1 and 2 are the wives, the plaintiff and the 3rd defendant are the daughters, the 4th defendant and the husband of the 5th defendant and father of the defendants 6 and 7 namely K.S.Rajamani are the sons of Selai Gowder. THE said Selai Gowder died intestate on 29.09.1990 leaving behind the plaintiff and the defendants as his legal heirs. THE husband of 5th defendant namely K.S.Rajamani died on 18.04.1995 leaving the defendants 5 to 7 as his legal heirs. THE suit properties are jointly belonging to the plaintiff and the defendants. Some of the properties are ancestral and some of the properties are self-acquired properties of Selai Gowder and late Selai Gowder purchased the land in R.S.No.8/1 in Udhagamandalam town situated at Ooty and built a house consisting of two portions bearing Door Nos.72-A and 72-D and put the plaintiff in one of the said portions namely Door No.72-D and from the date of possession, the plaintiff is in possession and enjoyment of the same. One of the wives namely Kantharoobi Ammal, the 1st defendant herein with the consent of all the legal heirs built a house in remaining part of the vacant land in the said Survey number and put 3rd defendant in possession and enjoyment of the said house with the consent of all the legal heirs. Still there was a vacant site to an extent of 520 sq.ft., and the defendants 1 to 4 released their respective share in the said vacant site, in favour of the plaintiff leaving 1/5th share to the defendants 5 to 7.

( 4. ) SIMILARLY, another release deed was executed by the defendants 1, 2 and 4, thereby, they released their share in the undivided share in the house bearing Door No.110/A in favour of the third defendant. The third defendant is in possession and enjoyment of the said property leaving 1/5 share in the land in favour of the defendants 5 to 7. Apart from those properties, the remaining properties of Sela Gowder are in joint possession and enjoyment of the plaintiffs and the defendants. The said joint possession by the parties are no longer conducive and therefore, the plaintiff issued a legal notice to the defendant through the advocate on 01.10.1997calling them to enter into an agreement of partition and divide the properties among themselves. Having received the said notice, the defendants failed to enter an agreement for partition and to execute necessary partition deed. The defendants 1 and 2 who are the wives of K.M.Selai Gowder are jointly entitled to 1/5 share. The plaintiff, the defendants 3 and 4 are each entitled to 1/5 share. The defendants 5 to 7 are jointly entitled to 1/5 share. Therefore, the plaintiff may be allotted 1/5 share in the suit properties and the preliminary decree may be passed in her favour.

( 5. ) THE case of the 3rd defendant would be as follows:- THE 3rd defendant is always willing to have the property partitioned in between parties. It was the 6th defendant, who was not co-operating for effective partition of the suit properties. THE 3rd defendant is agreeing for partition and allotment of her share as sought for in the plaint.

( 6. ) THE contentions of the defendants 5 to 7 are as follows:- THE properties mentioned in schedule 1 and 2 are the ancestral properties and the properties described in schedule 3 were acquired out of the income derived from the ancestral nucleus and by joint exertion and therefore, the 3rd schedule of the property would also become joint family proper