JUDGMENT :

R.N. MANJULA, J.

Prayer: Appeal filed under Section 96 of the Civil Procedure Code against the judgment and Decree dated 27.06.2018 made in O.S. No. 48 of 2013 on the file of the II Additional District Judge, Puducherry.

1. This appeal has been preferred challenging the judgment of the II Additional District Judge, Puducherry dated 27.06.2018 made in O.S. No. 48 of 2013.

2. The appellants are the plaintiffs who filed the suit for various reliefs namely declaration, partition and separate possession in respect of their alleged 7/40th share of the suit property for each along with permanent injunction.

3. The first and third defendants filed a written statement along with counter claim praying for dismissal of the suit and grant the relief of mandatory injunction, past and future mesne profits. The 2nd defendant had also filed a written statement along with the counter claim to dismiss the suit and grant the reliefs of mandatory injunction and recovery of possession. The learned trial Judge had dismissed the suit filed by the plaintiffs and allowed the counter claim of defendants 2 and 3. Aggrieved over the same, the plaintiffs have filed this appeal by challenging the decree and judgment made in O.S. No. 48 of 2013.

4. The short facts of the plaintiffs’ case are as hereunder:

The plaintiffs are the sons of the 1st defendant and 2nd and 3rd defendants are their sisters; their paternal grandfather namely Cannaippamodely @ Kanniappa Mudaliar domiciled at Puducherry and he owned several landed properties in Puducherry and Tamil Nadu; during his life time he disposed some of his properties situated at Puducherry and Tamil Nadu; after his life time the properties left out by him were inherited by the plaintiffs’ father Kasinatha Mudaliar. Kasinatha Mudaliar, plaintiffs and 1st and 3rd defendants were managing and cultivating the said properties; out of the joint family earnings derived from the said properties, plaintiffs’ father purchased several landed properties in Puducherry and Tamil Nadu; the plaintiffs being male members of the family had exerted their physical labour to develop the properties; the 1st item of the suit property was purchased in the name of plaintiffs’ father on 19.08.2004 under a registered sale deed; the 2nd item of the suit property was purchased in the name of the 1st defendant who is the mother of the plaintiffs and the sale deed dated 04.10.1990; the marriage of defendants 2 and 3 were held in a grand manner and they were given with shridhana properties and they are well placed in life; though the 2nd item of the suit property was purchased in the name of the 1st defendant/mother, the property was purchased with the joint family income.

4.1. The 2nd defendant’s husband is a cinema producer who used to be close with the parents of the plaintiffs and the 1st defendant used to stay at the house of the 2nd defendant at Chennai; on 19.12.2012 when the 2nd defendant was doing cultivating activities in the suit properties, he came to know that the 2nd and 3rd defendants had applied for transfer of pattas in their names; on enquiry the plaintiffs came to know that their father had executed a Will on 04.09.2008 and bequeathed four items of suit property including suit item No. 1 in favour of the 1st defendant; after the demise of their father, the 1st defendant had executed a settlement deed in favour of the 2nd defendant in respect of the suit 1st item on 11.05.2012; the 1st defendant settled the 2nd item of the suit property in favour of the 3rd defendant under a settlement deed dated 11.05.2012; as per the customary Law applicable to the natives of Puducherry, the father of the plaintiffs cannot exceed his disposable quota of 1/8th undivided share in the suit first item; hence the Will executed by the father in respect of the 1st item of the suit property will not bind the interest of the plaintiffs; hen