JUDGMENT :

S.S. SUNDAR, J.

Prayer: Second Appeal preferred under 100 of CPC against the decree and judgment dated 20.12.2018 passed in A.S. No. 52/2018 on the file of the learned III Additional District Judge, Salem, confirming the decree and judgment dated 04.07.2018 passed in O.S. No. 328/2009 by the learned I Additional Subordinate Judge at Salem.

1. The plaintiff in the suit in O.S. No. 328/2009 on the file of the learned I Additional Subordinate Judge, Salem, is the appellant in the above Second Appeal.

2. The appellant herein filed the suit in O.S. No. 328/2009 for granting preliminary decree for partition and separate possession of 1/4th share of plaintiff in the suit properties. The suit is also for permanent injunction restraining the defendants from in any way alienating or auctioning the suit property to anyone.

3. It is the case of the plaintiff that the suit properties belonged the plaintiff 's grandfather by name Thiru. P. Palanisamy. The plaintiff described the suit properties as ancestral properties even though it is admitted that the properties were purchased in the name of the 1st defendant, the father of the plaintiff. It is the further case of the plaintiff that the plaintiff came to know that the 1st defendant obtained a loan from the UCO Bank of Puducherry by pledging the 1st item of the suit properties and that the said property is now put to auction by the other defendants. Similarly, as regards 2nd item, it is stated that the same was purchased by the 1st defendant out of joint family income. The 1st defendant mortgaged the suit 2nd item for the loan borrowed for the business activities of a concern by name M/s. Space Makers Pvt. Ltd. in which the plaintiff 's father/1st defendant is not a partner or Director. Since the 1st defendant has signed the loan papers as a guarantor, it is contended that the loan obtained from the 5th defendant is not binding on the plaintiff. Since defendants 1, 2 and 3 are not amenable for partition, it is stated that the plaintiff was constrained to file the suit for partition.

4. The suit was not contested by defendants 1, 2 and 3/father and other brothers of plaintiff. The 5th defendant filed a written statement specifically contending that the suit is engineered by the 1st defendant who is the borrower and mortgagor in respect of the suit property and that the suit is filed only to thwart the legal action taken by the 5th defendant to proceed against the property of the 1st defendant to recover the amounts due. The plaintiff's father namely, the 1st defendant filed a Writ Petition in W.P. No. 25816/2008 before this Court and it was dismissed on 01.10.2009 with a direction to the 1st defendant to prefer an appeal before the Debt Recovery Tribunal within 10 days of receipt of the order. However, the 1st defendant did not file any application before the Debt Recovery Tribunal. It is contended that the present suit is therefore filed by the plaintiff to save the 1st defendant and the property from the provisions of SARFAESI Act and that the suit is barred by limitation.

5. The Trial Court after framing necessary issues found that the suit property is the absolute property of the 1st defendant and hence the 1st defendant had every right to mortgage the suit property in favour of the 5th defendant. The Trial Court further observed that the suit is intended to defeat the rights of mortgagees who have initiated action to recover the loan which was given to the 1st defendant on the basis of securities furnished by the 1st defendant. The Trial Court also found that the plaintiff/appellant has not produced any document to show that the suit properties were purchased by the 1st defendant out of the joint family property or joint family income from the other properties. It is to be noted that one of the items in the suit property is said to have been acquired by the 1st defendant by virtue of a Settlement Deed executed by his brother by name Thiru. Shanmugasamy. Therefore, it cannot be said