JUDGMENT

The plaintiffs in O.S.No.388 of 1997 on the file of the Principal Sub Court, Tiruchirappalli are the appellants in this second appeal. The appellants 1 to 3 herein along with the deceased fourth appellant filed the said suit for partitioning and allotting 4/15th share in the suit schedule property. The genealogy is as under:-

Chinnathambi Lachuumayee Neelambal Sannasi Kantham(P1) Palaniyandi Saraswathi(D3) Subramani(D1)

Kamaraj (D2) Kala (P2) Kannagi(P3) Kalyani(P4)

Elango (D4) Sivagami(D5) Poongodi (D6) Tamizharasi(D7)

2. The suit items 1 and 2 stood in the name of Chinnathambi Muthiriyar. There is no dispute that the first item was an ancestral property and that the second item was the self acquired property of Chinnathambi Muthiriyar. The case of the plaintiffs is that during his life time, Chinnathambi Muthiriyar executed Ex.A2 dated 27.10.1981 bequeathing both the items in favour of his sons in equal shares. Of-course, the plaintiffs putforth a claim that the suit first item was also the self acquired property of Chinnathambi Muthiriyar. The case of the plaintiffs was that the Sannasi's family was residing in the suit first item and that Planiyandi's son Elango was attempting to interfere with their possession by claiming that the suit first item has been allotted to him in a partition. That necessitated filing of the suit. Palaniyandi's son Elango who was shown as the fourth defendant filed written statement controverting the plaint averments. According to him, the first item was an ancestral property, while the second item was the self acquired property of his grandfather. While admitting the execution of the Will dated 27.10.1981, he claimed that Chinnathambi Muthiriyar could not have dealt with the ancestral property in his testament. Be that as it may, during the life time of Chinnathambi Muthiriyar, a family arrangement was entered into on 16.03.1991. All the three sons herein namely Sannasi, Palaniyandi and Subramani were parties to the said arrangement and it took place in the presence of Chinnathambi Muthiriyar. Pursuant to the said arrangement, the first item of the suit property was allotted to Palaniyandi, while the second item was allotted to Sannasi and Subramani. It was also later given effect to and a family partition deed was entered on 21.05.1997. As per the said partition, the first item was allotted to the branch of Palaniyandi, while the second item was allotted to the other two branches represented by the third son Subramani and the second defendant Kamaraj who was the son of Sannasi. Since the properties had already been divided, the present suit was not maintainable. That was the stand of the fourth defendant. Based on the rival pleadings, the trial court framed the necessary issues. The first plaintiff examined herself as P.W.1. Krishnasamy who was one of the attesting witness of the Will Ex.A2 dated 27.10.1981 was examined as P.W.2. Ex.A1 to Ex.A5 were marked. Subramani examined himself as D.W.3. Elango examined himself as D.W.1. Kamaraj examined himself as D.W.4. Chozharajan was examined as D.W.2. Ex.B1 to Ex.B14 were marked. After a consideration of the evidence on either side, the trial court by judgment and decree dated 08.11.2004 passed preliminary decree as prayed for. Permanent injunction was also granted. Aggrieved by the same, the aggrieved defendants filed A.S.No.36 of 2005 before the Principal District Judge, Tiruchirappalli. Vide judgment and decree dated 17.10.2005, the decision of the trial court was reversed and the suit came to be dismissed. Challenging the same, this second appeal was filed. It was admitted on the following substantial questions of law:-

(1) Whether the first appellate court is right in coming to a conclusion that Ex.A2 dated 16.03.1991 is only an agreement to partition the properties between Sannasi, Palaniyandi and Subramanian when the defendants contended that Ex.B2 is a family arrangement and in pursuance of the same, the defendants have entered into an