1. Estate of one Abdul Latiff and his spouse Fathima Beevi @ Batcha Ammal is the subject matter of a partition suit, out of which the instant second appeal arises.

2. Abdul Latiff and Fathima Beevi @ Batcha Ammal had four sons and four daughters, i.e., 8 children in all. Abdul Latiff died in 1965 and Fathima Beevi @ Batcha Ammal died in 1982. Thereafter, one son P.Abdul Jabbar filed a partition suit against his seven siblings. This partition suit is O.S.No.114 of 1985 on the file of the 'Subordinate Judge's Court at Kumbakonam', which shall hereinafter be referred to as 'trial court'. In this suit in the trial court, as mentioned supra, the sole plaintiff arrayed his seven siblings as defendants 1 to 7. Tenants / lessees in various properties forming part of the aforesaid estate were arrayed as co-defendants, i.e., defendants 8 to 15. There are four schedules to the plaint, i.e., Schedules A, B, C and D. Schedule A is the genealogy tree. Schedule B consists of 36 items of immovable properties, which according to the plaintiff are his father Abdul Latiff's properties. Schedule C consists of five items of immovable properties and according to plaintiff, this is mother Fathima Beevi @ Batcha Ammal's properties. Schedule D also consists of five items, but all five items are movable properties.

3. There is no dispute or disagreement that Abdul Latiff, his spouse and all parties to the lis who are entitled a share in the estate profess Islamic Faith owing to which they are governed by the Muslim Succession Act. Therefore, the four sons are entitled to 2/12 share each and four daughters are entitled to 1/12 share each. On this basis, aforesaid suit in the trial court was launched with prayers for partition of plaintiff's 2/12 share in Schedules B, C and D properties (which shall hereinafter collectively be referred to as 'suit properties' for the sake of brevity) and for actual distribution of plaintiff's 2/12 share by metes and bounds by appointing Commissioner for partition of properties. Prayer for accounts and other usual residuary prayer and prayer for costs also form part of the prayer. Defendants entered appearance and pleadings were completed.

4. To summarize and put it in a nutshell, defence was threefold.

First limb of defence was that item Nos.8 and 34 in B Schedule are self acquired properties of defendant No.3, i.e., P.A. Ashraf Ali (not part of the estate) and therefore not available for partition. Second limb of defence was item Nos.23, 31 and 33 comprised in S.No.29/6 in B Schedule belong to third parties (not part of the estate) and therefore not available for partition. Third limb of the defence was that the suit for all practical purpose is for partial partition, as according to defendants, certain properties in Singapore and Malaysia are also part of estate of late Abdul Latiff as well as his spouse Fathima Beevi @ Batcha Ammal and the same have not been included.

5. In the light of the very narrow scope of the instant second appeal (there shall be elaboration on this infra), it may not be necessary to delve in great detail about what were the issues that were framed in the trial court and how the rival contentions were dealt with and the reasonings for conclusions qua preliminary decree.

6. Suffice to say that the trial court passed a preliminary decree vide judgment and decree dated 28.11.1994. To be noted, this being a partition suit, 28.11.1994 decree of trial court was a preliminary decree. In short, the suit prayers were acceded to vide preliminary decree. Thereafter, plaintiff took out an application in I.A.No.239 of 2004 with prayers for actual partition of plaintiff's 2/12 share by appointment of a Commissioner and for delivery of possession of the same to plaintiff. This application shall hereinafter be referred to as 'final decree application' for the sake of convenience and clarity. There is no