JUDGMNET

G.JAYACHANDRAN, J.

1. The Appeal Suit is filed by the plaintiffs, who lost their suit filed for partition and declaration.

2. For the sake of convenience, the parties are referred as per their status and ranking in the plaint.

3. The case of the plaintiffs: -

Palani Gounder and his wife Pachiammal, had seven children. During his lifetime, Palani Gounder purchased the suit properties morefully described under Schedule 1 (two items) and Schedule 2 (one item). Palani Gounder died intestate on 24.05.1999. The suit properties are enjoyed by the plaintiffs 1 to 6 along with first defendant and the mother jointly. Due to continuous monsoon failure for years together, the properties remained without proper care and income. Therefore, the first defendant suggested to sell the property jointly. Accepting his suggestion to sell part of the agricultural lands in the Schedule 1 and 2, a registered General Power of Attorney to the second defendant was given on 22/06/2006 to fetch buyers and sell the property. Promising to adjust with the future sale consideration, a small amount was given to the plaintiffs by the first defendant, after obtaining their signatures. However, the Power Agent/T.Raj Kumar (2nd defendant) did not take any effort to sell the property and render accounts. Meanwhile, Pachiammal died on 16/12/2007, thereby the General Power of Attorney given in favour of the 2nd defendant became invalid. Subsequently, the first defendant demanded the loan given to the plaintiffs, hence the said loan was discharged. Trusting their brother (first defendant), the plaintiffs did not ask back the signed papers at the time of discharging the loan. Thereafter, misunderstanding erupted between the plaintiffs and the first defendant regarding dividing the properties. In the Panchayat, the plaintiffs proposed for division of the property equally and each of them to deal independently the portion allotted to them. The first defendant, however, refused to accept the proposal and delayed the division. Later, the plaintiffs came to know from third parties that at the instigation of the 1st defendant, the 2nd defendant was trying to misuse the Power of Attorney given to him even after the demise of one of the principal Pachiammal. Then, the plaintiffs went to the house of the first defendant and requested him to stop from attempting to alienate the properties based on the power of attorney deed, which had become invalid, after the demise of Pachiammal and to co - operate for the partition. Since, the first defendant, in connivance with second defendant, involved in activities detrimental to the other shares, the plaintiffs filed the suit to declare the suit schedule properties as joint family property enjoyed jointly by the plaintiffs 1 to 6 and 1st defendant. Consequently, they seek to divide the suit properties into seven equal parts and allot one share each to the plaintiffs 1 to 6 and one share to the first defendant, who is the son of Palani Gounder.

4. Pending suit, the first plaintiff and fifth plaintiff died. Their legal heirs were impleaded as plaintiffs 7 and 8, and defendants 9 and 10, respectively.

5. Case of the first defendant: -
The relationship between the plaintiffs and the first defendant is admitted. It is also admitted that the suit properties were purchased by Palani Gounder, who died intestate. The first defendant admits that in the 2nd item of the first schedule, there was a house in a portion which was not maintained properly. However, the properties are not in joint possession or enjoyment of the plaintiffs and the first defendant after 22.06.2006.

6. In the plaint averment that the plaintiffs and first defendant, along with their mother Pachiammal, decided to sell the property and executed a Power of Attorney to the 2nd defendant on 22/06/2006 is admitted. However, it is not correct that the power agent failed to discharge his power or that possession remained with the principal. In fact, the legal heirs of the Palani Goun