JUDGMENT :

(S.S. SUNDAR, J.)

(Prayer: Appeal Suit is filed Under Section 96 of the Code of Civil Procedure, against the Judgment and Decree of the I Additional District and Sessions Judge at Tiruppur, dated 04.06.2016 in O.S.No.639 of 2011.)

1. The appeal suit is filed against the Judgment and Decree of the I Additional District and Sessions Judge at Tiruppur, dated 04.06.2016 in O.S.No.639 of 2011.

2. The plaintiffs in the suit in O.S.No.639 of 2011 on the file of the I Additional District and Sessions Court are appellants in the above appeal. The respondent is none other than the father of the first appellant and the husband of the second appellant.

3. Despite notice being served through Court on 10.02.2017, as per the postal endorsement the respondent neither appeared nor engaged a learned counsel of his choice. The name of the respondent is also printed in the cause list.

4. The brief facts that are necessary for disposal of the appeal are as follows:

The first appellant is the son and the second appellant is the wife of the respondent. The suit in O.S.No.639 of 2011 was filed for partition of one of half share of first appellant in all the suit properties viz., item Nos.1 and 2 in the plaint schedule property. The suit is also for past and future maintenance of second appellant. The appellants prayed for other consequential reliefs and also to create a charge over the defendants ½ share in Item Nos.1 and 2 for payment of maintenance to the second appellant. From the description of the plaint schedule properties. It is seen that the suit first item consists of larger extent of valuable lands in Tiruppur District.

5.The case of the appellants in the plaint is that the suit properties are ancestral properties of the first plaintiff and the first appellant as the same having been allotted to the respondent in a Partition Deed dated 29.05.1998, which was entered into between the defendant and his mother and brother.

6. The specific case of appellants is that the suit first schedule properties were allotted to the respondent as “C” schedule to the partition deed dated 29.05.1998 and that the second schedule properties are the properties acquired by the respondent out of the income from the suit first item.

7. The suit was contested by the respondent on the ground that the partition deed dated 29.05.1998 is not valid as the female heirs of his father were not made as parties. The respondent though admitted the execution of the partition deed and the allotment of “C” schedule in the partition deed dated 29.05.1998, contended that the suit properties are his separate properties. However he filed the written statement questioning the validity of the said partition on the ground of non-joinder of female heirs of his father. It is also the specific contention of the respondent that the suit properties are his self acquired and separate properties.

8. The main defence raised by the respondent in the additional written statement was that the partition deed dated 29.05.1998 is not valid as the sisters of the defendant were not made as parties in the partition deed. The trial Court after finding that the suit properties are ancestral properties of respondent held that the daughters of Ayya Gounder viz., the sisters of the defendant are necessary and proper parties to the suit and dismissed the suit for non-joinder of necessary parties. It is seen that the trial Court has also found that the respondent himself filled a suit in O.S.No.103 of 1986 on the file of the Sub Court, Tiruppur against his father, brother and mother for partition. The preliminary decree was passed on 15.02.1999 in the said suit in O.S.No.103 of 1986, which was marked as Ex.B1. After perusal of Ex.B1, the trial Court found that the first item of suit property is one of the items shown in “B” Schedule in O.S.No.103 of 1986. After recording the fact that the sisters of the respondent are also necessary and proper parties to the suit, the suit was ultimately dismissed onl