JUDGMENT :

This Second Appeal has been admitted on the following substantial questions of law:

"(i). Whether the item No.1 of the suit property have trapping of coparcener Property, if so, whether Sections 6 or 8 of the Hindu Succession Act will apply, regarding devolution of the property ? and

(ii). Whether the Lower Appellate Court was right in holding Item No.2 of the Suit property blending with the hotch pot of the Item No.1 of the property? "

2. The appeal filed by defendants 1 and 2 in the suit O.S.No.67 of 2006 on the file of the Principal District Munsif Court, Erode has given rise to these questions. In order to appreciate the point in issue it is necessary to allude briefly to the facts giving rise to the suit.

3. The 1st respondent/plaintiff claiming to be the son of the 2nd defendant out of his wedlock with one Chitra @ Tamilselvi had filed the above suit for partition of his 1/6th share in the suit properties. The plaintiff has come to Court stating that the suit 1st Item of property was purchased by his paternal great grand father Vembanna Gounder and after his demise intestate the property had devolved on his son the 1st defendant i.e., the paternal grand father of the plaintiff. The 2nd defendant is the father of the plaintiff and the 3rd defendant his paternal aunt. He would further submit that from and out of the income derived from the 1st Item of property the 1st defendant had purchased the 2nd Item of property in his name under a sale deed dated 03.09.1985.

4. It is also his further case that he and his mother were deserted by the 2nd defendant who had also initiated proceedings for dissolving the marriage between himself and the plaintiff's mother, Chitra @ Tamilselvi. Not stopping with not providing any maintenance to him and his mother the defendants were trying to deal with the suit property by creating encumbrances on it so as to remove it away from the reach of the plaintiff and hence the suit.

5. The defense to this suit taken in the written statement jointly filed by defendants 1 and 2 are as follows:

(i) The plaintiff is not the son of the 2nd defendant as the plaintiff's mother had left her matrimonial home within 3 months of the marriage and there was no cohabitation between the 2nd defendant and the plaintiff's mother.

(ii) The property viz; the larger extent of the 1st Item of property measuring 6.50 acres was purchased by Vembanna Gounder and his brother Chinnasamy Gounder jointly. The brothers orally partitioned these properties with each being entitled to an extent of 3.25 acres. Thereafter, on the death of Vembanna Gounder this extent devolved on the 1st defendant and his brother Ramasamy who had also orally partitioned the properties with the 1st defendant being entitled to 1.62 1/2 acres of land described as Item I of the suit schedule. That the 1st defendant was doing coconut business and from out of this income the 2nd Item of property was purchased and that as regards Item II only the 1st defendant had any right or interest to the same. However, in paragraph no.3 of the written statement the defendants have described Item I as the absolute property of Vembanna Gounder and have denied that Item II was purchased out of "the income from the ancestral properties i.e., Item I of the suit property".

(iii) The 2nd defendant has executed a registered release deed dated 10.01.2006 in favour of the 1st defendant as consideration for the loan that he had borrowed from the 1st defendant. Therefore there was no property available for partition. They therefore sought to have the suit dismissed.

6. The learned Principal District Munsif had framed three issues and an additional Issue which were:

"(i) Whether the plaintiff is entitled to a preliminary decree?

(ii)Whether the plaintiff is entitled to a decree for injunction till the partition is effected?

(iii)To what other relief"

Additional Issue:

"Whether it is true that the plaintiff is not the legal heir of the 2nd defendant?"

7. The plaintiff's mother had adduc