JUDGMENT :

(Prayer: Second Appeal filed under Section 100 of CPC, 1908 against the decree and judgment dated 14.03.2006 passed in A.S. No.8 of 2005, on the file of the Principal District Judge, Erode, upholding the decree and judgment dated 10.08.2004 passed in O.S. No.95 of 2002, on the file of the Subordinate Court, Tharapuram.)

The appellants in the present second appeal are the defendants 6,9,10 & 14 in O.S.No.95 of 2002 on the file of the Subordinate Judge, Dharapuram, Thiruppur District.

2. For the sake of convenience, the parties are referred to as per their ranking in the trial court and in appropriate places, their ranking in the present appeal would also be indicated.

3. The case of the plaintiffs is as follows:

The suit property originally belonged to Palaniappa Chettiar through a registered sale deed dated 02.05.1918 (Ex.A1). Palaniappa Chettiar had six children namely Chinnammal, Kamatchi Ammal, Muthu Raja, Gurusamy, Chinnasamy and Valliammal. The first daughter Chinnammal and her husband Marudamuthu died intestate without any issues. Palaniaapa Chettiar died on 08.04.1967 intestate and his wife pre-deceased him. Therefore the suit property devolved upon Kamatchi Ammal, Muthu Raja, Gurusamy, Chinnasamy and Valliammal, each entitled to 1/5 share in the suit property. The plaintiffs purchased 1/5 undivided share from Valliammal on 27.10.1999 through a registered sale deed (Ex.A2). He also purchased 1/15 share from Rajaratinammal and others through a registered sale deed dated 29.08.2001(Ex.A3). Before purchasing the same, the first plaintiff was a tenant in the suit premises by running a shop. Since the plaintiffs could not enjoy the suit property in common with the other legal heirs of late Palaniappa Chettiar, they demanded for amicable partition from the defendants by issuing a notice dated 09.10.2001 (Ex.A4). The defendants 9, 10, 13 & 14 sent a reply with a false allegation that the suit property was purchased by Palaniappa Chettiar from out of the income derived from his ancestral properties and therefore, the sale in favour of the plaintiffs is not valid. The plaintiffs therefore, filed a suit for partition of the suit property into 15 equal shares and to allot 8 such shares to them.

4. The suit was resisted by the defendants 2,5,6,7,9,10 &14 on the following grounds:

1. The suit property was purchased from out of the income derived from the ancestral properties of Palaniappa Chettiar.

2. The sale deeds Ex.A2 and Ex.A3 executed by Valliammal and the children of Kamatchiammal are not valid as the daughters cannot claim any right in the ancestral properties.

3. Since no partition is effected among the co-sharers, the co-sharers are entitled to a right of pre-emption in the dwelling house which is the suit property.

5. On the basis of the above pleadings, the trial court framed necessary issues and after full contest decreed the suit. A preliminary decree dated 10.08.2004 for partition was passed dividing the suit property into 15 equal shares and to allot 8 such shares to the plaintiffs on the following grounds:

1. The defendants did not adduce any documentary evidence to show that the suit property was purchased from out of the income derived from the ancestral properties of late Palaniappa Chettiar.

2. In fact the defendants did not prove the existence of any ancestral properties.

3. The defendants did not also exercise their right to purchase the shares sold in favour of the plaintiffs.

6. Aggrieved over the same, the defendants 10 & 14 filed an appeal in A.S.No.8 of 2005 before the Principal District Judge, Erode. The Principal District Judge, Erode after analyzing the evidence on record upheld the findings of the Trial Court.

7. Aggrieved over the same, now the second appeal is filed by the appellants.

8. Notice of motion was ordered in the second appeal and after several adjournments the matter is posted today for final hearing.

9. Mr.T.S.Baskaran, learned counsel appearing for the appellants fairly conceded that both t