JUDGMENT :

M.M.SUNDRESH, J.

(Appeal suits are preferred under Section 96 C.P.C., against the judgment and decree dated 12.03.2012 in O.S.No.6 of 2008 passed by the District Judge, Nagapattinam.)

Suit has been laid for partition and separate possession by the plaintiff against the defendants. The plaintiff is the elder brother of defendants 1 and 2. The first defendant is the younger brother of the plaintiff. The second defendant is the sister. The third defendant is the subsequent purchaser of some of the suit properties.

2. In the plaint, the plaintiff has contended that though there were two earlier attempts made, resulting in some documents being created, no actual partition has taken place and legally no reliance has been made on the same.

3. The first defendant being the younger brother of the plaintiff has contended that the family partition arrangement dated 21.01.2003 and thereafter, on 17.09.2006 would bind the parties. The first defendant has complied with his part of the arrangement by making due payments. Accordingly, the second defendant paid a sum of Rs.25 lakhs. Insofar as the payment due to the plaintiff is concerned, the first defendant is always ready and willing to pay a sum of Rs.7 lakhs as agreed upon. The subsequent agreement came into being in view of the dissatisfaction expressed by the second defendant over the earlier arrangement made on 21.01.2003. The parties are in enjoyment of the respective shares after the aforesaid two documents, though not registered.

4. The second defendant, who is the sister of the plaintiff and the first defendant, filed the written statement contending that she has received only a sum of Rs.12 lakhs, while executing the documents, which was shown as if, she received Rs.25 lakhs. Accordingly, she also prayed for 1/5th share of the suit property.

5. A counter claim also has been made by her with respect to the movable properties viz., Holy Quran and the furniture. Alternatively, she has also asked for directing the plaintiff and the first defendant to pay interest from 03.02.2006.

6. Before the trial Court, the plaintiff examined himself as P.W.1 and marked Exs.A1 to A5. A4 and A5 are the sale deeds executed on 10.01.2007 by all the parties in favour of the third defendant. On behalf of the defendants, D.Ws.1 to 3 were examined and Exs.B1 to B27 were marked. Most of these documents have been marked by the first defendant. Ex.B27 is the copy of Crl.O.P.No.15985 of 2008 on the file of High Court, Madras wherein the second defendant made an averment that she had received Rs.18 lakhs from the first defendant. The remaining Rs.7 lakhs has been adjusted towards payment of the pagadi to the tenants for vacating the premises in their possession. She paid a sum of Rs.7 lakhs out of Rs.18 lakhs to the plaintiff, which the first defendant is liable to pay. The unregistered documents have been marked as Exs.B2 and B5 by the first defendant.

7. The trial Court framed the following issues for consideration.

1. Whether the plaintiff is entitled to partition of 2/5 shares in the suit properties?

2. Whether the plaintiff is entitled for future profits?

3. Whether the partition was effected between the plaintiff and defendants 1 and 2 on 21.01.2003?

4. Whether the third defendant is a bona fide purchaser for value?

5. To what relief?

8. Apart from the documents marked, Exs.C1 and C2 have also been marked on behalf of the Court.

9. Upon considering the evidence available, the trial Court decreed the suit granting a preliminary decree for 2/5th share while granting 1/5th share to the second defendant. The remaining 2/5th share has been granted in favour of the first defendant. Insofar as the counter claim made by the second defendant in respect of Holy Quran and immovable properties, the same was dismissed. Though the trial Court has given a finding that the second defendant had received a sum of Rs.18 lakhs, no decree has been granted to that effect. Challenging the judgment and decree rendered by the trial