JUDGMENT

Aggrieved over the decree and judgment of the trial Court dismissing the suit filed by the plaintiff in respect of the fourth item of property, the present first 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:-

It is the case of the plaintiff that the plaintiff and the defendants 1 and 3 to 7 are the members of the joint hindu family, in which the first defendant is the kartha (Manager). Late Palaniappa Chettiar, who was the original ancestor of the parties (except defendants 2 & 5), had two wives namely, Unnamalai and Visalakshi. The said Palaniappa Chettiar after the death of the first wife Unnamlai had only one son by name, Ramanathan. The said Ramanathan after his marriage with Umayal, died without issues born to them. The second wife Visalatchi died in the year 1973 leaving behind Arunachalam Chettiar, the first defendant and a daughter namely, Unnamalai, eight defendant. Arunachalam Chettiar's first son was Palaniappan and the defendants 3 and 4 are the younger sons of the first defendant. The first defendant's son, one Palaniappan died on 06.05.1990 leaving behind his wife, son and daughter, defendants 5-7. The eighth defendant's sons are the defendants 9 to 11. Visalatchi died on 28.12.1973.

(ii) It is the case of the plaintiff that the first defendant was adopted by the Umayal to her husband Ramanathan, when he was aged about 17 or 18 years old. The second defendant is the wife of the first defendant. The plaintiff and the defendants 6 & 7 are the children of the predeceased son of the first defendant namely, Palaniappan Chettiar and the fifth defendant is his wife. The properties described in the schedule are the joint family properties of the plaintiff and the defendants 1 and 3 to 7. The plaintiff is entitled to 5/64 shares in the said properties. The original ancestor Palaniappa Chettiar had also executed a will in a sound disposing state of mind bequeathing his property to the first defendant on 14.07.1957. The residential house had already been divided between the first defendant and his sons.

(iii) Item Nos.1 to 3 mentioned in the schedule are the ancestral properties of the joint family. Item No.4 has been acquired out of the joint family funds of the first defendant and his sons. The joint family funds had been advanced to one Ramasamy Chettiar for acquiring Item No.4. The first defendant joint family was the co-owner with the said Ramasamy Chettiar. When the first defendant left for foreign part, he had instructed his parents to settle with Ramasamy Chettiar and get the plot towards the joint family interest. The parents of the first defendnt, who were in a fiduciary relationship to him, especially to safeguard the interest of the family of the first defendant settled with Ramasamy Chettiar and obtained a sale deed dated 10.12.1957 in respect of Item No.4, which was brought into existence in the name of Visalakshi Achi, who had really acted as a trustee and in a fiduciary capacity for the benefit of the first defendant's joint family.

(iv) It is the further case of the plaintiff that the first defendant purporting to act as power of attorney had executed a nominal sale deed of Item No.4 in favour of the second defendant. The plaintiff submits that item No.4 is still in joint possession of the first defendant and other members of the joint family including the plaintiff. Hence, the sale deed has to be ignored as nonest and in order to avoid unnecessary contentions, the second defendant was also added as a party. Visalatchi Achi had no beneficial interest in the property and the first defendant could not also transfer any title.

(v) It is further contended that Visalatchi Achi had also filed a suit against the first and second defendants in C.S.No.49 of 1975 and the same was dismissed. However, the appeal against the said order in O.S.A.No.93 of 1979 w