JUDGMENT

DR.G.JAYACHANDRAN, J.

and C.KUMARAPPAN, J.

The appeal is directed against the judgment and decree passed by the trial Court in the suit filed for partition and rendition of accounts.

2. The appellant herein is one of the legal heirs of the deceased first defendant, who was impleaded as 26th defendant in the suit on the demise of the first defendant pending suit.

3. The facts leading to the appeal is capsulated below:-

(i) The plaintiff and the defendants 1 and 2 are brothers. The suit schedule properties [initially, in the plaint, five items were shown, later, Item No.2 was deleted and parties contested only in respect of four properties, renumbered as Item Nos.1 to 4] claimed to be the properties of the joint family. It is specifically pleaded that the first item of suit schedule property was purchased by the mother of the parties in the year 1946 and rest of the Items 2 to 4 are ancestral in nature. The plaintiff's case is that their father predeceased their mother and mother died intestate in the year 1984, leaving behind her three sons, who are the plaintiff and the two defendants and each entitled for 1/3rd share. The plaintiff and the second defendant were employed in Chennai and residing away from the suit schedule properties. The properties were under the administration of the first defendant. While so, the first item of the suit schedule property, measuring an extent of 5 Acres and 26422 sq.ft., was plotted out as a layout. The layout consists of 27 approved plots and 19 unapproved plots. To facilitate the promotion of the layout, the plaintiff and the second defendant gave a Power of Attorney to the first defendant in the year 1986. Based on the Power Deed, some of the plots were sold to the defendants 3 to 24 as plots. In the year 1992, another Power of Attorney was executed by the plaintiff and the second defendant in favour of S.Sridhar, the 25th defendant, who is none other than the son of the first defendant. Being aggrieved by non-rendition of accounts by the defendants 1 and 25 for the plots sold, on the strength of Power of Attorney Deeds, suit was filed seeking 1/3rd share in the suit properties, rendition of accounts in respect of the plots sold based on the Power of Attorney and future profits in respect of the properties described as Item Nos.2 to 4 till the delivery of possession.

(ii) The suit was contested by the first defendant and on his demise, his legal heirs namely, the defendants 25 to 27 continued the suit. As far as the second defendant is concerned, he sailed with the plaintiff and paid necessary Court fee, seeking 1/3rd share in the suit schedule properties. The 24th defendant, who is one of the purchasers of plot, filed written statement pleading that he is not a necessary party and he has purchased the property for value based on the Power of Attorney and had put up construction over the plot and he is in possession of the property.

4. The trial Court based on the pleadings, framed the following issues:-

''(i) Whether plaintiff is entitled to 1/3 share in respect of Item Nos.3, 4 and 5 of the suit schedule?

(ii) Whether plaintiff is a Trustee of Item 2 of the suit schedule?

(iii) Whether first defendant has to render accounts in respect of Items 1 and 3 of the schedule?

(iv) Whether plaintiff is entitled to have past and future mesne profits as claimed in the suit?

(v) Whether defendant No.24 is not a necessary party in the suit?

(vi) Whether the suit is hit by misjoinder of parties?

(vii) What relief plaintiff is entitled for?''

5. On the side of the plaintiff, the plaintiff Marimuthu himself was examined as P.W.1 and 13 documents were marked as Exs.A.1 to A.13. On the side of the defendants, defendants 1 and 2 were examined as D.W.1 and D.W.2 and 28 documents were marked as Exs.B.1 to B.28.

6. The trial Court, on appreciating the evidence and taking note of the fact that the plaintiff has given up his claim in respect of 2nd item property and amended the plaint deleting Item No.2 from the sched