JU D G M E NT

This appeal is preferred against a judgment and decree dated

07.09.2011 in O.S.No.190 of 2010 passed by the learned Additional

District and Sessions Judge (FTC No.2) Salem.

2.The plaintiffs are the appellants. The plaintiffs filed the above suit in O.S.No.190 of 2010 for partition in the suit property and for permanent injunction restraining the defendants from alienating the suit property.

3.The case of the plaintiffs is that, the plaintiffs are brothers and the

1st defendant is the father of the plaintiffs and their mother is one Kamala. The 2nd defendant is the son of the 1st defendant born through one Pappa, a concubine of the first defendant herein. The 1st defendant lived with his concubine along with the 2nd defendant. The suit properties are the joint family properties of the 1st defendant and his father Chinnusamy and his elder brother Kandhasamy. They divided the properties under a registered partition deed dated 30.04.1979. In that partition deed the properties described in the A schedule were allotted to Chinnusamy and his wife Arayee to be enjoyed by them for life without any right of alienation, and after the life time of Chinnusamy and his wife Arayee the properties described in the A schedule were directed to be divided into two equal shares and the 1st defendant and his elder brother Kandasamy has to succeed the property. After the demise of Chinnusamy and his wife Arayee, the A schedule property mentioned in the partition deed was divided into two equal shares. The 1st defendants and the plaintiffs 1 to 3 executed a sale deed in favour of the elder brother Kandasamy in respect of his half share. The other half share was allotted to the 1st defendant and the plaintiffs and that share was conveyed to the 1st plaintiff by the 2nd and 3rd plaintiffs and the 1st defendant. The 1st plaintiff took possession of the said property and he is in exclusive possession and enjoyment of the said property. Therefore, there is no dispute between the members of the family in respect of A and B schedule properties mentioned in the partition deed.

4.The properties described in C schedule of the partition deed was allotted to the 1st defendant namely Chinnapaiyan which the plaintiffs and the 1st defendant are in joint possession. They are cultivating the above property according to their convenience without division by metes and bounds. While so, the 1st defendant was gained over by his concubine Pappa and the 1st defendant was attempting to alienate the properties mentioned in the suit to deprive the plaintiffs' lawful share in the said properties. Hence, the plaintiffs were constrained to file the above suit for partition. The trial Court upon considering the averments made in the plaint and the evidence on record dismissed the above suit placing reliance on the judgment reported in and held that the sons of a divided son does not get rights from his father by birth, who are excluded by virtue of Section 8 of Hindu Succession Act and they cannot become coparcenors in the properties in question.

5.Aggrieved by this, the present appeal suit is filed by the appellant/plaintiff.

6.The learned counsel appearing for the appellants would contend that the property which the 1st defendant got by virtue of the partition deed amongst his father and brother although separate property qua other relations, it attained the characteristics of co-parcenary property after the plaintiffs were born. He would submit that it is settled principle that the property inherited by a male Hindu from his father, father's father or father's father's father is an ancestral property. The essential feature of ancestral property, according to Mitakshara Law, is that the sons, grandsons and great grand sons who inherits it, acquires interest and the rights attached to such property at the moment of their birth. The share which a co-parcenor obtains on partition of ancestral property is ancestral property as regards his male issue. After partition, the prop