The plaintiffs in the suit in O.S.No.13 of 2005 on the file of the First Additional District Judge, Trichy, are the appellants in the above First Appeal.

2. The appellants have filed the suit for partition and separate possession of their ½ share in the suit property. The suit property is a house plot measuring an extent of 3,600 square feet in T.S.No.2067 (Old) and New T.S.No.17.

3. The brief facts as set out in the plaint are as follows:

3(a). The suit property belonged to one B.Ramamoorthy Iyer and his brother B.Sundaresa Iyer by virtue of a sale deed dated 01.07.1970. The plaintiffs are the wife and children of B.Ramamoorthy Iyer. Since B.Ramamoorthy Iyer died on 17.01.2002, the plaintiffs, who are the legal heirs of B.Ramamoorthy Iyer, is entitled to ½ share in the suit property.

3(b).The defendants are the widow and children of B.Sundaresa Iyer who is the joint owner purchased the suit property along with B.Ramamoorthy Iyer.

4. The defendants filed a written statement inter alia contending as follows:

4(a). Though the brothers B.Ramamoorthy Iyer and B.Sundaresa Iyer purchased the properties jointly under the sale deed dated 01.07.1970, they are not the exclusive owners of the suit property nor they purchased the suit property out of their own funds. The father of the brothers one Balasubramaniya Iyer had four sons including the two brothers and a wife by name Seethalakshmi.

4(b). Out of the joint earnings of Balasubramaniya Iyer and his sons, Balasubramaniya Iyer purchased the property either in the name of his wife or his sons. Hence, all the acquisitions were treated as the joint family properties. All the joint family properties were partitioned on 20.12.1990 orally and the said partition was also recorded subsequently in a memorandum signed by the parties on 10.07.1991.

4(c). The first appellant's/first Plaintiffs husband B.Ramamoorthy Iyer was allotted in the oral partition, a property which was purchased in the name of Seethalakshmi, the wife of Balasubramaniya Iyer and mother of B.Ramamoorthy Iyer. B.Ramamoorthy Iyer sold the property allotted to him in the oral partition to one Murugesan under a sale deed dated 29.01.1996. Since the said oral partition was acted upon and B.Ramamoorthy Iyer himself had sold the property allotted to him in the oral partition, the suit is not maintainable. In the partition, the suit property was allotted to one B.Narayanan, another brother of B.Ramamoorthy Iyer. Since the said B.Narayanan is in possession and enjoyment of the suit property, the suit for partition without imp leading him as a party is not maintainable. The suit without setting aside the partition is not maintainable. Since the suit property and other properties were already divided among the members of joint family and the parties to the partition are in possession of the properties allotted, the present suit for partition paying fixed Court fee under Section 37(2) of the Court Fees Act is not maintainable. The plaintiffs who had been ousted from the suit property will lose their right for partition as the brother of B.Ramamoorthy Iyer by name Narayanan had prescribed title to the suit property by adverse possession and ouster.

5. Before the trial Court, the appellants examined the fifth plaintiff and fourth plaintiff as P.W.1 and P.W.2 respectively. The third defendant was examined as D.W.1 and one Gopalan was examined as D.W.2. The plaintiffs have filed documents Ex.A1 to A7 and the defendants have filed Exs.B1 to B12. Before the trial Court, the appellants contended that the memorandum of partition which is marked as Ex.B1 dated 10.07.1991 is invalid on the ground that it was not signed by B.Ramamoorthy Iyer and that the document is not admissible in evidence for want of Stamp Duty and registration.

6. It was further contended by the plaintiffs/appellants that the suit property is not the joint family property and hence, the other brothers of B.Ramamoorthy Iyer are not entitled to any share. It was also argued on