The legal point established in the judgment is that under the Hindu Succession Act, 1956, ancestral properties and the right of partition by birth as a joint family member are crucial in determining the legal rights of the parties.

A. SELVAM, J.

This appeal suit has been directed against the judgment and decree dated 10th March, 2008 passed in Original Suit No. 5 of 2005 by the Additional District and Sessions Court, Fast Track No. V, Coimbatore at Tiruppur.

2. The first respondent herein, as plaintiff, has instituted Original Suit No. 5 of 2005 on the file of the trial court praying to pass a preliminary decree of partition in respect of her share in the suit properties, wherein the present appellant and the remaining respondents have been arrayed as defendants.

3. The material averments made in the plaint are that the suit item Nos. 1 and 2 have been purchased by one Rasa Gounder, by virtue of a Sale Deed dated 17.8.1921 and after his demise, his two sons, viz., Kaliappa Gounder and Chennimalai Gounder have effected a partition by way of a registered Partition Deed dated 29.9.1951. After the demise of Kaliappa Gounder, his three sons, namely Rangasamy, Natarajan and Ramasamy have effected a partition by virtue of a registered Partition Deed dated 25.3.1991, wherein the suit item Nos. 1 and 2 have been allotted to the share of Natarajan. The said Natarajan is none other than the first defendant and his two sons, namely Duraisamy and Chenniappan have been arrayed as defendants 2 and 3 and the wife of Natarajan has been arrayed as fourth defendant. The plaintiff is none other than the daughter of the third defendant by name Chenniappan. The plaintiff has got birth on 23.2.2000. The remaining suit items are also joint family properties. Since the plaintiff has got birth on 23.2.2000 as a joint family member, she is having right of partition. The third defendant, father of the plaintiff, has failed to look after the plaintiff. Under the said circumstances, the present suit has been instituted for the reliefs sought therein.

4. In the written statement filed on the side of the defendants 2 to 4, it is averred that the suit item Nos. 1 and 2 have been purchased by virtue of a Sale Deed dated 17.8.1921 by one Rasa Gounder, who is none other than the paternal grandfather of the first defendant. After his demise, a partition has been effected on 29.9.1951 amongst his two sons, namely Kaliappa Gounder and Chennimalai Gounder, wherein the suit item Nos. 1 and 2 have been allotted to the share of Kaliappa Gounder. The said Kaliappa Gounder has passed away, leaving behind him three sons, namely Rangasamy, Natarajan (first defendant) and Ramasamy. On 25.3.1991, a registered partition has taken place amongst three sons of the said Kaliappa Gounder, wherein the suit item Nos. 1 and 2 have been allotted to the share of the first defendant, viz., Natarajan. Therefore, the suit item Nos.1 and 2 are the separate properties of the first defendant and during his life time, the plaintiff is totally precluded from claiming partition. The suit remaining items are not the joint family properties and therefore, the entire suit is liable to be dismissed.

5. On the basis of the divergent pleadings raised on either side, the trial court has framed necessary issues and after contemplating both the oral and documentary evidence, has decreed the suit in respect of suit item Nos. 1 and 2 by way of passing a preliminary decree. The judgment and decree passed by the trial court are being challenged in the present appeal suit by the third defendant as appellant.

6. Before contemplating the rival submissions made on either side, it would be apposite to look into the character of the suit item Nos. 1 and 2. It is an admitted fact that the suit item Nos. 1 and 2 have been purchased by virtue of Ex.B.1 dated 17.8.1921 by one Rasa Gounder, who is none other than the paternal grandfather of the first defendant and after his demise, his two sons, namely Kaliappa Gounder and Chennimalai Gounder have partitioned the same by virtue of a registered Partition Deed dated 29.9.1951, wherein the suit item Nos. 1 and 2 have been allotted to the share of Kaliappa Gounder. The said Kaliappa Gounder has