The main legal point established in the judgment is that the determination of shares and the allotment of specific properties in a partition suit should be made at the time of passing the final decree, and the manager's gift without the consent of other family members is not binding on the family members.

1. The plaintiffs in O.S.No.38 of 1985, on the file of the Sub Court, Udumalpet, are the appellants herein. They filed the suit for partition.

2. The Trial Court, by its judgment dated 31.01.1989, passed a preliminary decree holding that the plaintiffs are entitled to 4/5 share in the suit property. The Trial Court also held that the seventh defendant is entitled to claim the property purchased by her to be allotted to her vendor.

3. Aggrieved by the findings of the Trial Court in Paragraph Nos.9 and 11 of its judgment in the abovesaid suit, the present Appeal is filed.

4. The case of the plaintiffs/appellants, as stated in the plaint, is as follows:-

i) The first defendant is the father of the plaintiffs 1 to 4 and husband of the fifth plaintiff. The properties are the joint family properties. The second defendant is the sister of the first defendant. The defendants 3 to 6 are the children born to Muthu Naicker, viz., the husband of the second defendant, through his first wife. The suit properties are the ancestral properties in the hands of the first defendant. The first defendant got those properties in a partition that took place on 31.10.1968, between himself and his brother. Therefore, the plaintiffs 1 to 4 and the first defendant are each entitled to 1/5 share in the suit properties.

ii It is further stated in the plaint that in the partition deed, dated 31.10.1968, some properties were allotted to the second defendant, the sister of the first defendant. Nevertheless, the first defendant executed a gift deed, in respect of item 2 of the suit properties in favour of the said Muthu Naicker, ( viz., the husband of the second defendant) in the year, 1969, and that gift deed is not binding on the plaintiffs 1 to 4, as the first defendant has no authority to make such a gift in respect of the joint family properties. Item 2 of the suit properties was sold to the seventh defendant by the second defendant under a registered sale deed, dated 15.12.1984 and under that sale deed, the seventh defendant cannot claim any right.

5. The seventh defendant filed a written statement, denying the allegations made in the plaint that the properties are the ancestral properties and the plaintiffs 1 to 4 are having 1/5 share each. She also denied the allotment of the suit properties to the sharer in the partition that took place on 31.10.1968. She further stated that the plaintiffs were aware of the gift deed executed by the first defendant in favour of the husband of the second defendant and second defendant's husband is in enjoyment of the properties for more than a statutory period and item 2 of the suit properties absolutely belonged to the second defendant. She further stated that in the event of partition decree being passed, the property purchased, viz., item 2 be allotted to the share of the second defendant, so that she can claim the same.

6. The first defendant, though filed a written statement, did not take part in the trial and he was set ex parte. The defendants 2 to 6 also did not file any written statement.

7. The Trial Court, on the basis of the pleadings, framed the following Issues:-

i. Whether the plaintiffs 1 to 4 are entitled to claim share in the suit properties?

ii. Whether the seventh defendant is the absolute owner of item 2 of the suit properties?

iii. Whether the claim of the seventh defendant for allotment of the property under equity is permissible?

And

iv. To what relief, the plaintiffs are entitled to ?

8. The Trial Court tried Issues i and ii) together and held that the properties are the ancestral properties in the hands of the first defendant and the plaintiffs 1 to 4 are entitled to 1/5 share each and Item 2 of the suit properties gifted by the first defendant to the second defendant's husband is not valid. Nevertheless, the purchase of item 2 by the seventh defendant is admitted, but, she cannot claim any right over the property, and, she is entitled to claim equity for allotment of the pro