- (1.)DEFENDANTS 7 to 10, who are the legal representatives of the deceased 6th defendant in O. S. No. 4963 of 1982 on the file of the V assistant Judge, City Civil Court , chennai, are the appellants.
(2.)THE parties are referred to as per their ranking in the original suit.
One Munusamy Chetty had four sons, viz. Adiseshaiah chetty (first defendant), Tandavakrishnan (deceased), Narayanasamy (fifth defendant), whose legal representative is the 11th defendant/sixth respondent, and Chinnasamy (sixth defendant), whose legal representatives are defendants 7 to 10/appellants. The first defendant Adiseshaiah Chetty had two wives. While the plaintiff and the second defendant are the sons of Adiseshaiah through his first wife, the defendants 3 and 4 are his sons through his second wife.

The suit property originally belonged to Munusamy chetty and the same was inherited by his sons on his death on 3. 9. 1937 and therefore, the suit property is the ancestral joint family property. The plaintiff and the defendants are the members of un-divided Hindu joint family and they are the co-parceners. On 9. 9. 1940, Tandavakrishna, who had 1/4th share in the suit property, relinquished his share for the benefit of other co-parceners. After the said relinquishment, the defendants 1,5 and 6 were each entitled to 1/3rd share right and interest in the said co-parcenary property, which is described in schedule B.

Muthiyalamma, wife of Munusamy Chetty, who has no right in the co-parcenery property, appears to have executed a settlement deed on 15. 9. 1967 in favour of defendants 1,5 and 6, which is not valid and binding. Though the members of the joint family are living separately for the sake of convenience, the suit property continued to belong to the said joint family, in which the plaintiff is entitled to 1/5th share, out of the 1/3rd share inherited by Adiseshaiah.

The defendants 1,5 and 6 collusively and with fraudulent intention to defraud the plaintiffs legitimate share in the co-parcenery property, without his concurrence and knowledge, have brought about a partition deed dated 19. 9. 1981, under which the first defendant appears to have alienated 1/15th share of the undivided share of the plaintiff, without any authority and received an inadequate compensation, in the name of owelty. The plaintiff is not a party to the said partition and the same is void in law, not binding upon him. Under the partition, the rights given to the 6th defendant is void ab initio and therefore, the plaintiff is entitled to 1/15th share. The 6th defendant, who is residing in the joint family property, managing and collecting the rents, is liable to answer the claim of the plaintiff, for income. On the above said basis, the plaintiff had filed the suit for partition and separate possession of his 1/15th share in the B schedule property.

(3.)THE first defendant, the father of the plaintiff, denying the allegations in the plaint, would contend that the suit property originally belonged to his father Munusamy Chetty, as his self-acquired property, which devolved upon the widow Muthyalamma and four sons of Munusamy Chetty on his death; that the plaintiff is not entitled to claim any share, labeling the property as co-parcenery property; that Tandavakrishna executed a release deed in favour of his mother and brothers; that Muthyalamma settled her share in the property in favour of defendants 1, 5 and 6 and thus this property is the separate property of defendants 1,5 and 6; that if at all, the plaintiff would be entitled to 1/25th share and not 1/15th share; that this defendant, as father and manager, effected partition of the property, on 19. 9. 1981, that too with the concurrence and knowledge of the plaintiff; that the value of the entire house was determined at Rs. 90,000/=, and the 6th paid an aggregate sum of Rs. 30,000/= each to this defendant and to the 5th defendant, out of which this defendant tendered a sum of Rs. 3,600/= to the plaintiff, being the share of the plaintiff in the suit property, which was refused; that the suit filed, without the relief of declaration, for setting aside the partition, is not maintainable and if at all the plaintiff is entitled only to owelty of rs. 3,600/=.
The defendants 5,6 and 7, though filed separate written statements, they have taken the same stand as that of the first defendant, praying that the suit may be dismissed with costs.

Based upon the pleadings, framing necessary issues, the trial Court proceeded with the trial. The evidence adduced on either side brought to surface, according to the assessment of the learned trial Judge, that i) the plaintiff is entitled to 1/15th share; ii) that the partition dated 19. 9. 1981 is not binding upon the plaintiff, since he is not a party to the said partition document; iii) that in view of the fact, that the partition deed is not binding and in view of the proved fact that the suit property belongs to joint family, the plaintiff is entitled to 1/15th share therein; and iv) that in order to preserve the property, the plaintiff is also entitled to an order of injunction. Thus deducing the decision, a preliminary decree came to be passed, declaring the plaintiffs share, granting injunction also, as per the judgment dated 27. 11. 2000, which was challenged by the appellants/defendants 7 to 10/legal representatives of the deceased 6th defendant in A. S. No. 145 of 2002 on the file of the VI Additional Judge, City civil Court, Chennai.