JUDGMENT :

PRAYER: Appeal Suit filed under Section 96 read with Order 41 of Code of Civil Procedure, to call for the records and to set aside the judgment and decree dated 26.04.2012 passed in O.S.No.71 of 2009 on the file of Additional District Cum Fast Track Court, Dindigul.

The unsuccessful defendants 1 and 2 are the appellants in the appeal.

Facts:

2. The plaintiff and the 5th defendant are the sons of one Ganalakshmi, who is the sister of defendants 1 to 4. The suit property was purchased by the plaintiff and the defendants 1 to 5 under two different sale deeds, dated 12.12.1996 from one Thirumalaikolunthu Pillai and others. According to the plaintiff as the joint purchaser of the suit property, the plaintiff was entitled to 1/6 share in the suit property.

3. The case of the plaintiff is that the defendants 1 to 3 being maternal uncle of the plaintiff wanted to start a business in the suit property, which was purchased as cited supra for the purpose of running a Ginning Factory in the name and style of Sri Rathina Kalyana Vinayagar Ginning Factory. The factory was run in partnership by the plaintiff and defendants. The defendants 1 to 3 were in charge of the business and near about the year 1997 when differences arose between the parties, the defendants 1 to 3 expressed their desire to run the business by themselves. Accordingly the plaintiff, defendants 3 to 5 executed a deed of retirement from the partnership business alone in favour of the defendants 1 and 2 on 31.01.2003. According to the plaintiff, the retirement deed was effected only with regard to the partnership business and not with respect to the suit property. The plaintiff was pressing the defendants to amicably divide the suit property but the defendants 1 and 2 were evading the same. The plaintiff as the co-sharer of the suit property entered into an agreement of sale in favour of one K.Rajaram on 02.05.2007 for which the defendants sent a notice on 07.07.2008 to the plaintiff directing him to cancel the sale agreement as according to them, the plaintiff had released his right in the suit property in their favour. The plaintiff issued a reply notice on 28.07.2008 to the said notice. As the defendants did not come forward to divide the properties, the plaintiff filed the suit for partition of his 1/6th share in the suit property.

4. The defendants 1 and 2 filed a written statement admitting that the suit properties were purchased jointly by the plaintiff and the defendants 1 to 4. The defendants further submitted that the plaintiff had 1/10 share under the sale deed and not 1/5th share as claimed because the sale consideration of Rs.29,400/- was paid by the plaintiff and the fifth defendant jointly. According to the defendant, as the partnership business was runing in loss and as the plaintiff and defendants 3 to 5 did not want to share the liabilities of the business, they wanted to retire from the partnership business. Therefore, on 31.01.2003, the plaintiff and the defendants 3 to 5 executed relinquishment deed relinquishing their right in the partnership business and as such, the plaintiff had no right in the suit property. According to the defendants 1 and 2, at the time of retirement of the plaintiff from the partnership business, the accounts were settled and the retired partners were settled their share. The defendants further submitted that as a consequence of the retirement deed, the plaintiff and the defendants 3 to 5 relinquished their shares in favour of the defendants 1 and 2 and received some other properties for their share. According to the defendants, the plaintiff and the defendants entered into a family arrangement on 12.02.2003 in the presence of witnesses, whereunder, the plaintiff and the defendants 3 to 5 relinquished their right in the suit property in favour of defendants 1 and 2 and the defendants 1 and 2, in pursuance of the said family arrangement on 12.02.2003 executed a Will in favour of their wives on 20.02.2003. As far as the agree