Challenge in this appeal is to the preliminary decree for partition granted in OS No.176 of 1984, on the file of the District Court, Udagamandalam, upholding the claim of the plaintiff to 9/40th share in the suit properties.

2. The 1st defendant in the suit had originally preferred this appeal, upon his death pending appeal, his legal representatives have been brought on record as appellants 2 to 10. The claim of the plaintiff is that the suit properties belonged to the joint family consisting of Mooka Gowder and his sons, namely the plaintiff and defendants 1 to 3. The defendants 4 to 8 are the children of Bookiammal, a pre-deceased daughter of Mooka Gowder and defendants 9, 10 and 11 are the daughters of the Mooka Gowder. The defendants 12 to 21 are the purchasers of certain items of properties from the 1st defendant. The 22nd defendant is an agreement holder. Defendants 31 to 37 are the legal representatives of the 17th defendant, who died pending suit.

3. The plaintiff would contend that the suit A Schedule properties were ancestral properties measuring about 14.13 and 3/8 acres, of which, according to the plaintiff, 12.89 and 1/8 acres remained with the family. B and C Schedule properties were purchased from and out of the joint family nucleus in the names of Mooka Gowder and the 1st defendant respectively. The plaintiff would further claim that the family was engaged in the businesses that were mentioned in Schedule D and accounts were sought for the said businesses, apart from the claim of partition. A notice was issued by the plaintiff on 30.04.1984 demanding partition, for which the 1st defendant sent a reply stating that the B Schedule properties, which were purchased in the name of Mooka Gowder, were purchased out of the funds contributed by the 1st defendant. It was also claimed that the properties mentioned in Schedule C are the absolute properties of the 1st defendant, having been purchased from and out of his own earnings, even during the lifetime of Mooka Gowder and thereafter. In the said reply notice dated 13.06.1984, the 1st defendant would also claim that there had been partition in the family and there was no joint family even during the lifetime of Mooka Gowder. The claim of the plaintiff that the ancestral property about of 12 acres, remained with the family was stoutly denied. It was also pointed out that an extent about 1.19 acres in Nedunkulla Village, was sold by the 2nd defendant without consent of the other family members. Upon receipt of the said reply, the 1st plaintiff came forward with the above suit.

4. Except the 1st defendant, the other sons, namely defendants 2 and 3, supported the case of the plaintiff. The alienees were represented by various counsels and the defendants 2 and 3 paid the Court fee for allotment of their shares. The daughters and the children of the pre-deceased daughter also claimed the shares by paying separate Court fee. The alienees filed written statement contending that the properties belonged to 1st defendant absolutely and that they are bona fide purchasers of value without notice of the claim of the plaintiff.

5. The 1st defendant, who contested the suit, while admitting the relationship, denied the existence of the ancestral property. He would also claim that the majority of the properties in the suit A, B and C schedules were purchased by Mooka Gowder, out of the funds provided by the 1st defendant, who was the eldest son. It was contended that the 1st defendant who started his carrier as a picker boy in Tennis Court in Kothagiri, befriended on CP Raja Bahadur Mudaliar, who was the leading wine merchant in Kothagiri. The said Raja Bahadur Mudaliar, who developed a liking for the 1st defendant as a youngster, helped him in several ways, enabling him to start a business in provisions as well as the Mandi business in Potatoes and other root vegetables.

6. According to the 1st defendant, Mooka Gowder and his brothers together, possessed of only 4 acres of lands