Challenge in this second appeal is made to the Judgment and decree dated 30.04.2010 passed in A.S.No.8 of 2009 on the file of the Additional District Court, FTC II, Chennai, confirming the judgment and decree dated 22.07.2008 passed in O.S.No.7995 of 2006 on the file of the XVIII Assistant City Civil Court, Chennai.

2. The suit has been laid by the plaintiffs for partition and permanent injunction.

3. The case of the plaintiffs, in brief, is as follows:

The plaintiffs are the daughters of late Thiruvengada Naicker and Varadhammal. Thiruvengada Naicker died leaving behind his wife Varadhammal and sons Kannan, Natesan, Elumalai and Rajendran and daughters viz., the three plaintiffs. Varadhammal also died. Kannan died leaving behind the defendants 1 to 4 as his legal heirs. Another son Elumalai also died leaving his legal heirs as defendants 5 to 7. As such, Thiruvengada Naicker died leaving behind 7 branches of legal heirs. The suit property is the absolute property of Thiruvengada Naicker. The plaintiffs are also having portions in the suit property. After the death of Thiruvengada Naicker, the plaintiffs and the defendants are residing in the suit property and the same has not been divided by metes and bounds. As such, the plaintiffs are each entitled to 1/7th share in the suit property. The plaintiffs demanded partition by making several requests and also, issued notice to the defendants on 06.10.2003, even thereafter, the defendants did not come forward for amicable partition. Hence, the suit.

4. The case of the defendants, in brief, is as follows:

The suit is not maintainable either in law or on facts. The suit property was originally purchased by Thiruvengada Naicker under the registered sale deed dated 17.05.1965. The property was purchased as a vacant site and later on, Thiruvengada Naciker along with his four sons had mortgaged the property as the Kartha of joint family constituting an undivided Hindu Joint family consisting of himself and his four sons and out of the said amount borrowed, the superstructure was built. Thus, the suit property is the joint family property belonging to Thiruvengada Naicker and his four sons. The plaintiffs are the daughters. Therefore, all the sons including the father are each entitled to 1/5th share in the suit property. After the death of the father, the sons are residing in the suit property. The suit property has not been divided amongst the sons. The daughters viz., the plaintiffs, are not entitled to seek partition, when the sons have not chosen to divide the suit property, the suit is thus premature and not maintainable. It is only the defendants, who had paid the entire mortgage debt and got back the mortgage deed. It is false to state that the suit property is the absolute property of Thiruvengada Naicker. The plaintiffs never demanded any partition as put forth in the plaint. It is false to state that the plaintiffs are each entitled to 1/7th share in the suit property. At the most, the plaintiffs would be entitled to claim only 1/3 rd share out of the 1/5th share to which Thiruvengada Naicker was entitled to. The mother had left the Will bequeathing her share in the suit property in favour of the sons. There is no cause of action and hence, the suit is liable to be dismissed.

5. In support of the plaintiffs' case, PW1 has been examined and Exs.A1 and 2 were marked. On the side of the defendants, DW1 was examined and Exs.B1 to 4 were marked.

6. On a consideration of the oral and documentary evidence adduced by the respective parties, the trial court was pleased to hold that the plaintiffs are not entitled to obtain 3/7 share in the suit property and they would be entitled to obtain only 3/35 share in the suit property and accordingly, granted the preliminary decree in favour of the plaintiffs. The plaintiffs preferred the first appeal. The first appellate court also confirmed the judgment and decree of the trial court. Challenging the same, the second appeal has been preferr