- (1.)THIS second appeal has been filed against the judgment and decree passed by the Court of the Principal District Judge, Coimbatore, dated 09.03.1994, made in A.S.No.214 of 1993, confirming the judgment and decree passed by the Court of the Subordinate Judge, Tiruppur, dated 08.01.1993, made in O.S.No.295 of 1989.
(2.)THE first defendant before the trial Court is the appellant in the present second appeal. THE plaintiff had filed the suit in O.S.No.295 of 1989, on the file of the Court of the Subordinate Judge, Tiruppur, praying for the passing of a preliminary decree for partition of the suit schedule properties, by dividing the same into four equal shares and to allot one such share to the plaintiff and to put him in separate possession of the same and for the cost of the suit.
The brief facts of the case, as stated by the plaintiff in the suit, are as follows: The plaintiff is the minor son of the second defendant. The defendants are brothers. The properties described in the suit schedule are ancestral properties belonging to the joint family. The plaintiff is entitled to - th share in the suit schedule properties. The second defendant had married the plaintiff's mother and they had two daughters, both of whom are elder to the plaintiff. The second defendant had deserted the plaintiff, his mother and sisters. Therefore, they were living at Naduppalayam with the plaintiff's maternal grand father. It had been further stated that the second defendant had executed two release deeds in favour of the first defendant, acting against the interest of the plaintiff. The release deeds are not for the benefit of the plaintiff, as he has not been made a nominee to the release deeds. The consideration mentioned in the documents are also not true, or correct. The second defendant is not entitled to release the properties, including the plaintiff's share. Since the release deeds, dated 12.12.1988 and 14.12.1988, are not genuine documents, they will not in any way bind the plaintiff and curtail his rights over the suit schedule properties. Even though the first item of the suit schedule property was purchased in the name of the plaintiff's paternal grand mother, since it was purchased from and out of the income from the ancestral joint family properties, the plaintiff is entitled to - th share in both the items of the suit schedule properties. A legal notice had been issued on behalf of the plaintiff and the first defendant had issued a reply stating that the plaintiff is living along with the second defendant and the release deeds were made only for the benefit of the family. The statements made in the reply notice are false and devoid of merits. Hence the plaintiff had filed the suit for partition and separate possession of his - th share.

The brief averments in the written statement filed by the first respondent are as follows: The first respondent does not admit any of the allegations contained in the plaint, except those which were specifically admitted. The statements made by the plaintiff are deliberate, falsehood, mischievous and misleading. The claim of the plaintiff that the first item of the suit schedule property was purchased in the name of the plaintiff's paternal grandmother, from and out of the income of the ancestral joint family properties is false. It had also been stated that the plaintiff, his mother, the second defendant and the plaintiff's sisters are all living together happily and peacefully at Thalingikkadu Thottam, Pappampatti Village, Palladam Taluk. They are not residing at Naduppalayam with the maternal grand father as stated in the plaint. There was no misunderstanding amongst them and it is not true to state that the second defendant had deserted the plaintiff, his mother and the sisters. It is only for the purpose of filing the present suit, the plaintiff had made such allegations with ulterior motives. The first item of the suit schedule property has not been purchased from and out of the income of the joint family ancestral properties and it has been purchased only out of the hard earned money of the defendants mother. Only after receiving a huge amount of money, as consideration, the second defendant had executed two separate registered release deeds in favour of the first defendant, dated 12.12.1988 and 14.12.1988, as document Nos.2715 and 2865 of 1988, respectively. The entire consideration had been utilised and spent only for the welfare and advantage of the entire family. By virtue of the release deeds, the first defendant had become the absolute and exclusive owner of the entire suit schedule properties. When the second defendant had no right, title or interest over the properties, the plaintiff who claims right through the second defendant, cannot have any claim or right over the suit schedule properties. Since the plaintiff is not having any right, title, or interest in the suit schedule properties, there is no need to implead him as a party, or nominee in the release deeds. Therefore, the plaintiff is not entitled to any share in the suit schedule properties. It had been further stated that a bare suit for partition, without seeking the relief of cancellation, or setting aside of the release deeds, is not maintainable and it is liable to be dismissed in limine. The plaintiff cannot maintain the suit as a co-owner, or a co-sharer of the suit schedule properties. Further, there is no cause of action for the suit and therefore, the suit filed by the plaintiff is not maintainable.

(3.)BASED on the rival claims made by the plaintiff, as well as the defendants, the trial Court had framed the following issues for consideration:i) Whether the first item of the plaint schedule properties is a joint family property?ii) Whether the release deeds by the second defendant is binding on the plaintiff?iii) Whether the plaintiff is entitled to partition? If so, what share he is entitled to?iv) What other reliefs the plaintiff is entitled to?
Based on the statements contained in Ex.A-1, the trial Court had come to the conclusion that the first item of the suit schedule property belonged exclusively, to Deivanaiammal, the mother of the defendants and therefore, the trial Court had come to the conclusion that the plaintiff is not entitled to any share in the first item of the suit schedule properties. It was also held that the release deed, dated 12.12.1988, marked as Ex.A-1, executed by the second defendant and his sisters in favour of the first defendant is valid in law. The trial Court had found that the second item of the plaint schedule property was an ancestral property belonging to the defendants and their father. Therefore, the plaintiff was entitled to only 1/6th share in the said property. In such circumstances, the plaintiff is entitled to partition and separate possession of 1/6 th share of the second item of the suit schedule property.