JUDGMENT :

PRAYER : This Appeal Suit is filed under Order XLI, Rule 1 of CPC under Section 96 of the Code of Civil Procedure to set aside the judgment and decree dated 08.12.2016 passed by the learned Principal District Judge, Kancheepuram District at Chengalpattu in OS No.220 of 2010.

The present Appeal Suit has been instituted against the judgment and decree dated 08.12.2016 passed by the learned Principal District Judge, Kanchipuram District in OS No.220 of 2010.

2. The appellant is the defendant and the respondents are the plaintiffs in the suit.

3. The respondents/plaintiffs instituted suit for partition. For passing preliminary decree for partition of the plaintiffs' 2/8th share and for a direction against the appellant to render accounts in respect of rental income from the date of the suit till the date of separate possession and to pay the plaintiffs' 2/8th share in the rental income.

4. The plaint averments state that the mother of the first plaintiff is Rajamani Ammal and the first defendant is her son. Plaintiffs 2 to 5 are the grandchildren of Rajamani Ammal through her deceased first daughter Smt. Jayalakshmi. Smt. Rajamani Ammal had four daughters and a son. Smt. Rajamani Ammal and the appellant had purchased the suit schedule mentioned property jointly out of savings and earnings from Varadarajalu Pandalu under a registered Sale Deed dated 14.02.1957. Smt.Rajamani Ammal was doing Milk Vending business and she was also a pensioner. Later the schedule mentioned property was mortgaged to one one D.Jaganatha Naidu for a sum of Rs.500/- in order to celebrate Nagabushnam's marriage and later it was discharged. They are in joint possession of the property till Rajamani Ammal died on 26.08.1994. The first plaintiff's sister Jayalakshmi died intestate in the year 1984 leaving behind the plaintiffs 2 to 5. Her husband predeceased her. The first plaintiff's younger sister Thirupurasundari died unmarried in the year 1978. The plaintiffs are jointly entitled to 2/8th share in the suit property. The first defendant/appellant is entitled to 5/8th share and the second defendant is entitled to 1/8th share. Though the plaintiffs orally demanded for amicable partition, the first defendant/appellant neglected the same and the plaintiffs issued a lawyer notice on 12.06.1995 for which the first defendant/appellant issued a reply.

5. The plaintiffs earlier filed a suit in OS No.75 of 1997 before the Principal Sub Court, Chengalpattu for claiming partition of 2/8th share and that the case was transferred to the District Munsiff Court on the point of pecuniary jurisdiction and renumbered as OS No.358 of 2004. The suit was dismissed on 12.12.2006 after trial. During the pendency of the suit, Hindu Succession Act was amended and the amendment came into force. While the amendment was brought to the notice of the District Munsiff Court, Chengalpattu, the suit was dismissed without considering the change of law providing right of property to the amendment. In view of the amendment in Hindu Succession Act, the plaintiffs filed a fresh suit in OS No.220 of 2010 and it was decreed in their favour.

6. The first defendant/appellant denied the plaint averments by stating that the suit schedule property was purchased by the sale of gold chain of 5 sovereigns presented to him by his maternal uncle R. Elayaperumal on 01.07.1955 when the first defendant joined in St. Joseph's High School.

7. The defendants have stated that plaintiffs' mother did not contribute any amount and she had no means to purchase the suit schedule property. Thus the property was purchased for the benefits of the first defendant alone. The first defendant joined Southern Railway in September 1962 and retired as a Railway Guard receiving a monthly salary of more than Rs.17,000/- per month. He mortgaged the property and subsequently, it was discharged.

8. The first defendant/appellant states that the observation of the Appellate Court in AS No.43 of 2007 will not confer any right on the p