The defeated second defendant is the appellant herein.

2. The plaintiffs filed the suit, in O.S.No.328 of 1995, before the learned Principal District Munsif, Pudukottai, seeking the relief of partition and separate possession of 3/4th share in the suit properties and for costs.

3. After contest, the learned Principal District Munsif, Pudukottai, by Judgment and Decree, dated 31.07.1997, dismissed the suit.

4. Aggrieved by the Judgment and Decree passed by the learned Principal District Munsif, Pudukottai, the plaintiffs preferred an appeal, in A.S.No.157 of 1997, before the learned Principal District Judge, Pudukottai.

5. After contest, the learned Principal District Judge, Pudukottai, by Judgment and Decree, dated 31.03.1999, allowed the appeal, set aside the Judgment and Decree of the learned Trial Judge and passed a Preliminary Decree allotting 1/4th share to each of the plaintiffs.

6. Challenging the correctness of the Judgment and Decree passed by the learned Principal District Judge, Pudukottai, the defeated second defendant has preferred the present second appeal.

7. The brief averments of the plaint that are necessary to decide this appeal are as follows:

The suit properties are undivided joint family properties of the plaintiffs and the first defendant. The suit properties were purchased out of the income derived from the ancestral properties as well as the other joint family properties. After the demise of the predecessors-in-title, the plaintiffs and the first defendant inherited the possession and enjoyment of the suit properties. The first defendant, in the capacity of the Family Manager and the eldest member of the family, had been in joint possession of the suit properties with the plaintiffs. Therefore, each of the plaintiffs are entitled to 1/4th share in the suit properties. In such circumstances, the second defendant interrupted the plaintiffs' possession of the suit properties on the ground that the first defendant had sold the suit properties to him. Therefore, the plaintiffs sent a legal notice, dated 26.05.1994, to the first defendant seeking allotment of their share in the suit properties. Since, there was no reply, the plaintiffs filed the suit.

8. The brief averments of the written statement filed by the second defendant that are necessary to decide this appeal are as follows:

The plaintiffs and the first defendant are joint family members. The first defendant is having two wives. After the demise of the first wife, who is the mother of the first plaintiff, he married Mariammal, who is the mother of the plaintiffs 2 and 3 and living together in Sathankadu Vettikadu Village, Pattukottai Taluk. The first defendant along with his brothers had already sold the joint family properties to the second defendant. After selling the joint family properties, the remaining properties were the suit properties and a house thereon. In order to meet the family expenses, the first plaintiff and the first defendant sold the suit properties to the second defendant and obtained the sale consideration. Therefore, the plaintiffs have no right over the suit schedule properties. Now, under the inducement of the first defendant in order to grab money from the second defendant, the plaintiffs filed the suit. Since the except the suit properties other properties have not been included in the partition suit, the suit itself is not maintainable. The second defendant is in possession and enjoyment of the suit properties for the past eight years. Since the plaintiffs and the first defendant are not in possession of the suit properties, the suit should be valued under Section 37(1) of the Tamil Nadu Court Fees Act and proper Court fee should be paid and on that ground also, the suit is liable to be dismissed.

9. Based upon the above pleadings, the Trial Court had framed three issues for consideration.

10. On the side of the plaintiffs, P.W.1 was examined and Exs.A1 to A5 were marked and on the defendants side, D.Ws.1 and 2 were examin