J U D G M E N T

Aggrieved over the concurrent findings made in O.S.No.664 of

1996 dated 29.01.2007, on the file of the learned Additional District Munsif, Vellore and in AS No.23 of 2007 dated 05.12.2007 on the file of the learned Subordinate Judge, Vellore, the plaintiffs 2 to 6 in OS No.664 of 1996 have preferred the Second Appeal, praying to set aside the dismissal orders passed by the Courts below.

2. For the sake of convenience, the parties are arrayed as per their own ranking before the trial Court.

3. The laconic averments made in the plaint, are as follows:

(i) The 1st plaintiff Natarajan (died) and Sundaresa Mudaliar are the sons of Rajagopal Mudaliar. Defendants 1 to 3 are the sons of Sundaresa Mudaliar and the 4th defendant is the widow of Sundaresa Mudaliar.

(ii) The 1st plaintiff, Sundaresa Mudaliar and their father Rajagopal Mudaliar constituted a Hindu Undivided Joint Family. The properties set out in schedule 'A' of the plaint are the joint family properties. The other brother Sadasivam had been adopted to his grandfather Murugesa Mudaliar and hence, he is not a member of the joint family and not entitled to any share in the joint family properties. Apart from those persons, there is one daughter Kamasala Ammal to Rajagopal Mudaliar, who is a deaf and dumb.

(iii) Plaintiffs have been maintaining Kamsala Ammal and her mother Chinnammal. Since, the 1st plaintiff has been maintaining Kamsammal and the mother of the 1st plaintiff's father, i.e. Chinnammal, Rajagopal Mudaliar executed a registered settlement deed dated 27.02.1957, conveying his 1/3 share in the 'A' schedule properties in favour of his wife Chinnammal.

(iv) The said settlement deed was executed as a family arrangement and it also amounts to renunciation of his interest in the joint family properties in favour of his wife Chinnammal. The said registered settlement deed was accepted by all the members of the joint family and also it was acted upon. Afterwards, the said Chinnammal, the mother of the 1st plaintiff sold her 1/3rd right in the 'A' schedule properties, obtained by her under the settlement deed dated 27.02.1957 to the 1st plaintiff by a registered sale deed dated 20.03.1962. Accordingly, by virtue of the sale deed dated 20.03.1962 as well as by inheritance, the plaintiffs are entitled to 2/3rd share in the Schedule 'A' properties of the plaint. In the meantime, the 1st plaintiff Natarajan died leaving behind the plaintiffs 1 to 6 as his legal heirs.

(v) Thereafter, the brother of the 1st plaintiff and the father of the defendants 1 to 3 sold the properties described in the 'B' schedule to the 1st plaintiff's wife viz., the 2nd Plaintiff-Mohanambal, by a registered Sale Deed dated 19.08.1985. Ever since the date of sale, the 2nd plaintiff is in possession and enjoyment of the properties covered by the Sale Deed dated 19.08.1985, The joint family properties were set out in the Schedule A of the plaint. A portion of the property belongs to the Sundaresa Mudaliar is set out in the B Schedule of the plaint. Deducting the 'B' Schedule properties, the properties now available for division is described in the Schedule 'C' of the plaint. In the Schedule 'C' properties, the plaintiffs are entitled to 2/3rd share and the defendants are entitled to 1/3rd share. The defendants are not amenable for amicable division of the schedule 'C' properties. Hence, the suit.

4. The case of the defendants, is as follows:

The plaint allegations are incorrect. There is no truth in them. The suit is bad for non-joinder of necessary parties, particularly, Mohanambal. The 1st defendant states that his father died during the year 1988. In 1950, when his father was alive, there was a partition between his father, the 1st plaintiff and their father Rajagopal Mudaliar. In the said partition, Sundaresa Mudaliar was alloted in S.No.141 an extent of 3-1/2 cents; in S.No.124/4, an extent of 1-1/2 cents; in S.No.222/1, an extent of 10 cents; in S.No.139/1 an extent of 16-1/2 cents, in S.No