JUDGMENT :

PRAYER: These Appeal Suits are filed under Section 96 of the Civil Procedure Code, to set aside the judgment and decree passed in O.S.No.448 of 2004 dated 30.11.2007 and O.S.No.11 of 2014, dated 24.04.2018 on the file of the First Additional District Court, Madurai and V Additional District Court, Madurai, respectively.

Though the two appeals have been filed in respect of two different cause of action, since the subject matter of the properties and the parties are one and the same, in order to avoid conflicting judgments, this Court is of the view that both the appeals are to be dealt with separately and disposed of separately in a common judgment.

A.S.(MD)No.190 of 2008:

2. Aggrieved over the dismissal of the suit in O.S.No.448 of 2004 filed by the plaintiff for dividing the suit properties into four equal shares and mesne profits, the present appeal is filed.

3. For the sake of convenience, the parties are referred to herein, as per their own ranking before the Trial Court in O.S.No.448 of 2004.

4. The brief facts leading to the filing of this Appeal Suit are as follows:

(i) the first defendant is the father of the plaintiff and the second and third defendants are the brothers of the plaintiff. The father of the first defendant was a landlord and he owned large properties. By way of a registered partition, dated 12.11.1952 between the first defendant's father, the first defendant and his brothers, the properties have been partitioned.

(ii) In the above said partition, 'B' schedule of properties were allotted to the first defendant. Out of the income earned from that properties, the first defendant purchased more properties and treated the same as joint family properties. As the first defendant had developed illegal relationship with other women, in order to save the property, the plaintiff's mother insisted the first defendant to divide the properties to safeguard the family properties. Therefore, as per the list furnished by the first defendant, the partition deed dated 12.11.1967 was executed and registered by believing the representation of the first defendant.

At that time the plaintiff was a student the second and third defendants and the other brother of the plaintiff, one Chandrasekar were also minor. The mother of the plaintiff was illiterate. Hence, the plaintiff and his mother also signed the said partition deed.

(iii) The plaintiff contended that only in the second week of January, 2003, he came to know that the first defendant had suppressed certain properties allotted to him under the partition, dated 12.11.1952 and also the properties purchased by him out of the earnings from that properties. The existence of the properties was not known to the plaintiff at the time of execution of the partition deed, dated 12.11.1967. Hence, it is the contention that the partition deed dated 12.11.1967 has to be treated only as partial partition and the entire properties of the first defendant have to be partitioned.

(iv) According to the plaintiff, the partition of the year 1967 is a result of fraud, misrepresentation and coercion of the first defendant. The plaintiff's mother died on 14.07.1989. His other brother Chandra Sekaran died on 16.09.1987 without any issues. Therefore, the plaintiff is also entitled to 1/4 share in the properties allotted to Chandra Sekaran. Hence, the plaintiff demanded partition in the first week of April 2003 over the said properties. But, the first defendant refused for the same. Further, the first defendant had executed a released deed, dated 30.04.1973 in favour of the fourth defendant in respect of the portion of Item No.1 of the suit property. The plaintiff claims that the said release deed will not bind on the plaintiff, since he is not a party to the said deed and he is entitled to 1/4 share in the suit properties and the income therefrom. Hence, he filed the suit.

(v) Disputing the contention of the plaintiff, the first defendant filed a written statement stating that he and his brothers g