JUDGMENT

Aggrieved over the dismissal of the suit filed for partition, this appeal is filed.

2. For the sake of convenience, the parties are referred to herein, as per their rank before the Trial Court.

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

The plaintiffs and the second defendant are the sons of the first defendant. The parties were residing as joint family. The mother of the plaintiffs died on 18.10.2009. The first schedule property originally belonged to the grandparents of the plaintiffs namely, Muthiah Mudaliar and Muthammal. They have executed a conditional sale on 01.03.1946 for himself and as guardian for the first defendant along with plaintiffs' aunt Pitchaiammal in favour of one Gomathy Mudaliar. The said Gomathy Mudailar also executed an agreement dated 09.03.1946 agreeing to execute the reconveyance on 08.03.1961. Since she had failed to do so, the first defendant had filed a suit in O.S.11 of 1961 before the District Munsif Court, Tirunelveli and the suit has been decreed and the property has been registered in favour of the first defendant. After the purchase, he made improvements and put up construction in the first schedule property out of the joint family income. The plaintiffs and the second defendant also contributed money for construction of house as they are the sons of the first defendant. The second schedule property was purchased on 26.09.1994 from Solaiappa Mudaliar in the name of the first defendant from the joint family income as he is the elder of the family. The second plaintiff has constructed a new house, by spending a sum of Rs.5 lakhs. Now, in the first schedule property, the first plaintiff is residing in one portion and the second defendant is residing in another portion. The second plaintiff is residing in the second schedule property. Both the properties are joint family properties and each are entitled to share in the property. The first defendant has no right to execute the settlement deed in favour of the second defendant in respect of the entire property. Hence, the suit. 4. Before the trial Court, on the side of the plaintiffs P.W.1 to P.W.4 were examined and Exs.A1 to A10 were marked and on the side of the defendants D.W.1 was examined and Exs.B1 to B12 were marked.

5. The first defendant admitting the relationship between the parties stated that there is no joint family. The second schedule property was purchased by the first defendant out of his own income and savings. After the marriage of the plaintiffs, the first defendant allowed the first plaintiff to reside in one portion of the first schedule property and in another portion the first defendant is residing along with the second defendant. Similarly, the first defendant allowed the second plaintiff to reside in the second schedule property. After the death of his wife, the first defendant was residing with the second defendant and he has executed the settlement deed in favour of the second defendant in respect of the first and second schedule properties. The plaintiffs have no right to question the same. The second defendant took a stand that there is no joint family property. The settlement deed is valid one. The property was absolutely settled in his favour by his father. After the execution of the settlement deed, with the permission of the first defendant, the plaintiffs are residing in the suit property. Hence, the plaintiffs are not entitled to any relief as prayed for.

6. On the basis of the above pleadings, the following issues are framed before the trial Court:-

1) Whether the plaintiffs are entitled to get preliminary decree for partition and separate possession of their 1/2 share in the suit schedule properties as prayed for?

2) Whether the plaintiffs are entitled to get declaration as prayed for?

3) Whether the suit schedule properties are joint family properties or not?

4) Whether court fee paid is correct or not?

5) To what other relief the plaintiffs are entitled to?

Additional Iss