JUDGMENT

(1) The unsuccessful plaintiffs in the suit in OS.No.252/2003 on the file of the learned Subordinate Judge, Bhavani, are the appellants in the above Second Appeal.

(2) The plaintiffs filed the suit in OS.No.252/2003 before the Sub Court, Bhavani, for partition of 3/4th share in all the suit properties. The suit properties are agricultural lands described as six different portions with reference to various extents and specific boundaries, measuring 2.17.0 Hectares out of the total extent of 4.36.5 Hectares in RS.No.107 of Patlur Village, Bhavani Taluk, Erode District. The suit properties also include a well apart from a small house in the third item of the suit properties.

(3) The relationship between the parties are not in dispute.

Plaintiffs are the two sons and daughter of the 1st defendant. Plaintiffs 1 and 2 are the son and daughter of the 1st defendant born through his first wife by name Jeeva and the 3rd plaintiff is the minor son of the 1st defendant born through the 3rd wife of the 1st defendant, by name Vijaya. The 2nd defendant is the brother's wife of the 1st defendant.

(4) The case of the plaintiffs in the plaint is that the ancestral properties of the 1st defendant and his three brothers were partitioned under a registered Partition Deed dated 10.09.1975. An extent of 3.66 acres in S.No.555 and another extent of 1.23 acres in S.No.560 with a well and motor pumpset in Volakkadam Village was allotted to the 1st defendant. It is stated that the 1st defendant, for the purpose of purchasing other properties and for repaying the loan obtained by him from the Cooperative Bank, the properties allotted to the 1st defendant in the family partition was sold in favour of one Palanisamy under two Sale Deeds in the year 1985. It is the further case of the plaintiffs that the sale consideration obtained by the 1st defendant was more than the actual amount received by him under the documents and therefore, one of the documents was impounded for under valuation and an enquiry under Section 47A of the Indian Stamp Act is still pending. It is also stated that the 1st defendant's brother was also allotted undivided 5.40 acres and were enjoyed in common with reference to the undivided share of the respective parties. The 1st defendant after selling the ancestral properties which were allotted to him in the previous partition under two different documents and with the surplus money he had from the sale of the ancestral properties, purchased the properties allotted to his brother by two different Sale Deeds dated 30.09.1986 and 17.09.1987 respectively. Since the properties are not divided by metes and bounds, the 1st defendant entered into a partition with his junior paternal uncle by name Chinnusamy and the suit properties were allotted to the 1st defendant in the Partition Deed dated 23.01.1990. Since the suit properties were acquired by the 1st defendant by selling the ancestral properties for the benefits of plaintiffs and the 1st defendant, it is stated that the suit properties are joint family properties. Plaintiffs 1 and 2 along with the 1st defendant, executed a Mortgage Deed for a sum of Rs.1,50,000/- and constructed a house out of the amount. Stating that the plaintiffs and the 1st defendant are in joint enjoyment and that the 1st defendant was addicted to drinking and involved in gambling and other immoral activities including development of affairs with several women and that the 1st defendant refused to agree for an amicable partition giving 3/4th share in the suit properties, the suit for partition of 3/4th share is filed.

(5) The 1st defendant did not file any written statement and remained exparte throughout.

(6) However, the 2nd defendant in the suit filed a written statement denying all the allegations made in the plaint. The 2nd defendant stated that the suit properties belonged to the 1st defendant and he was enjoying the same as the absolute owner. It is further stated that the 1st defendant entered into an Agre