Paneerselvam and Others vs Mohana and Another

G. Rajasuria, J.—This appeal is focused at the instance of the defendants as against the judgment and decree dated 20.10.2008 passed by

the learned Additional District Judge, Fast Track Court No. I, Salem in O.S. No. 152 of 2005. The parties, for convenience sake, are referred to

here under according to their litigative status and ranking before the trial Court.

Compendiously and concisely, the germane facts absolutely necessary for the disposal of this appeal would run thus:

a) The first respondent-Mohana/plaintiff filed the suit for partition seeking the following reliefs:

To pass a decree in favour of the plaintiff

(i) permit the plaintiff to file the suit as indigent person.

(ii) set aside the partition deed dated 18.3.2002 as having been obtained by misrepresentation and fraud and not binding on the plaintiff''s share in

the suit properties.

(iii) directing the division of suit B sch. properties into 3 equal shares and allotting one such separated share to the plaintiff and directing the

defendants to place the plaintiff in possession of the share so allotted.

(iv) for costs. (extracted as such)

b) The defendants 1 to 6 filed the written statement resisting the suit.

c) D7 did not file any written statement.

c) The trial Court framed the relevant issues.

d) Up went the trial, wherein the plaintiff examined herself as P.W. 1 and marked Exhibit A-1. On the defendants'' side, the first defendant

examined himself as D.W. 1 along with D.W. 2 and marked Exhibits B-1 to B-14.

e) Ultimately, the trial Court decreed the suit and passed the preliminary decree allotting 1/3rd share to the plaintiff in the suit properties.

Being aggrieved by and dissatisfied with the judgment and decree of the trial Court, the defendants 1 to 6 appellants have preferred this appeal

on various grounds.

The relationship among the parties is an admitted one. One Palanivelu had one son and two daughters, viz., D1-Panneerselvam, D7-

Rajalakshmi and the plaintiff-Mohana. D6-Dhanalakshmi is the wife of D1; D2-is the son of D1; D3-is the wife of deceased Senthilkumar, the son

of Panneerselvam; D4 and D5 are the minor children of D3.

(a) According to the plaintiff, the suit properties were purchased by the deceased Palanivel vide the five sale deeds, viz., Exhibit B-6 dated

4.2.1955; Exhibit B-7 dated 11.4.1956; Exhibit B-8 dated 2.3.1960; Exhibit B-9 dated 10.12.1967 and Exhibit B-10 dated 20.2.1974 from out

of the sale proceeds, which he obtained by selling the ancestral property, which he got in a partition between himself and his co-sharers, and also

from out of his own income. Palanivelu died during the year 1976. The plaintiff also would proceed to narrate that Exhibit A-1, the partition deed

dated 18.3.2002 as contained in Exhibit A-1 (the certified copy of the partition deed) emerged among the following persons, viz.,

Panneerselvam (D1)

Senthilkumar (son of D1-Panneerselvam)

Gopi (-do-)

Rajalakshmi (sister of D1)

Mohana (-do-)

However, the plaintiff would contend that the signature of the plaintiff was obtained in the partition deed by misrepresenting to her, as though it was

a power deed. D1 and the co-sharers including the plaintiff from out of the joint family funds constructed a sago factory during the year 1987 and

they availed loan for raising such construction. The deceased Senthilkumar, who was also managing the joint properties wanted the power deed to

be executed by the plaintiff in his favour so as to enable him to mortgage the ""B"" scheduled property in favour of the Bank in order to run the said

sago factory business. Believing his, representation during March 2002, the plaintiff signed the said partition deed as contained in Exhibit A-1, as

though it was a power deed. Subsequently, she came to know about such fraudulent act and filed the suit.

(b) D1 filed the written statement, denying and refuting the averments/allegations in the plaint by setting out precisely the following facts:

According to the defendants the plaintiff and D7 relinquished their right over the properties in view of they having been given in marriage with

adequate Seervarisai. The contention of the plaintiff that all the suit properties except the B scheduled properties happened to be the self-acquired

properties of Palanivelu was wrong and false. The two daughters of Palanivelu were given in marriage by Palanivelu himself on a grand scale

spending huge sum and also giving them good amount of jewels. In the schedule appended to the written statement various items were claimed to

have been given to the plaintiff during her marriage by Palanivelu.

Necklace-12 sovereigns

Dollar chain-13 sovereigns

Ordinary chain-8 sovereigns

Watch chain (plaintiff)-3 sovereigns

6 Bangles-71/2 sovereigns

2 Rings-11/2 sovereigns

Thodu and Thongattan-2 sovereigns

Bridegroom ring-11/2 sovereigns

Watch chain-5 sovereigns

Jewels to plaintiff''s son-10 sovereigns

Share of mother''s jewels-10 sovereigns

Cash in box-Rs. 5,000/-

Gift at the time of mother in law''s death-Rs. 10,000/-

Gift at the time of father in law''s death-Rs. 15,000/-

Manjal neeratam expenses-Rs. 15,000/-

Gift at the time of plaintiff''s daughter marriage Rs. 10,000/-

Eluthigam expenses Rs. 54,000/-

The contention of the plaintiff that she signed the partition deed without knowing it as a partition but only as a power of attorney, is far from the

truth and only as an after thought she did choose to challenge the same. There were debts to the tune of Rs. 20 lakhs incurred by the family even at

the time of partition. The sago factory as described in the B schedule of the plaint is having nothing to do with the property of Palanivelu and hence

it is beyond doubt that the said factory cannot be the subject matter of partition. For starting the said factory and for running it the self-acquired

funds of D1 also was ploughed in and in such a case, the suit for partition would not lie at all at the instance of the plaintiff.

Accordingly, the defendants'' would pray for the dismissal of the suit.

Heard both sides.

The learned counsel for the appellants/defendants would advance his arguments, which could pithily and precisely be set out thus:

-The plaintiff-Mohana studied upto PUC and she was in the know of things at the time of signing the partition deed, which is a registered one.

-The plaintiff''s contention that she signed the partition deed believing it as a power of attorney, is too big a pill to swallow. If such sort of pleas are

entertained, then the sanctity attached to a registered document would be set at nought.

-Illustration (e) to Section 114 of the Indian Evidence Act would also attach importance to registered document. There is presumption also about

its genuineness.

-The plaintiff has not produced any evidence to show that she was defrauded or misrepresented to sign Exhibit A-1.

-D.W. 2 Rajendran one of the attesting witnesses to Exhibit A-1 was examined to establish and demonstrate the genuineness of Exhibit A-1;

whereas the evidence of P.W. 1, the plaintiff remains only her ipse dixit and no importance can be attached to it.

-Exhibits B-1 to B-14 would clearly show-up and point up that the suit properties were dealt with by D1. Exhibit B-4, the sale deed dated

27.2.1952 would highlight the fact that Palanivelu sold the property on his behalf and on behalf of his minor son Panneerselvam in favour of one

Perumal Gounder alienating the property, which he got as per Exhibit B-3, the partition deed dated 25.2.1943, which emerged between Ilayappa

Gounder, Perumal Gounder and Palanivel Gounder.

-The recitals in Exhibit A-1 would unambiguously and unequivocally highlight the point that voluntarily the plaintiff as well as D7 relinquished their

right over the suit property and in such a case, she cannot veer round and take an about turn so as to get Exhibit A-1 set aside.

-The Court below erroneously analysed the oral and documentary evidence and thereby simply decreed the suit allotting 1/3rd share in favour of

the plaintiff.

-Misreading the evidence of D.W. 1 the Court held that the sago factory was established in the suit property utilising the income of Palanivelu.

D.W. 1 barely stated that Palanivelu took on lease one Manju Sago factory and he did not admit that Velmurugan Sago factory situated in the suit

property, was owned by Palanivelu.

-The trial Court wrongly mulcted D1 to D6 with liability.

-The fraud and misrepresentation pleaded by the plaintiff ought to have been proved by her; but she did not discharge her onus of proof; but the

trial Court erroneously held as though her case was established.

Accordingly, he would pray for the setting aside the judgment and decree of the trial Court and for dismissing the suit.

Per contra, in a bid to torpedo and extirpate the arguments as put forth on the side of the appellants/defendants 1 to 6, the learned senior

counsel for the plaintiff/R1 would pyramid her argument, which could succinctly and precisely be set out thus:

-The trial Court taking into account both the oral and documentary evidence, correctly arrived at the conclusion that the suit properties are joint

properties; that after the death of Palanivelu during the year 1976, plaintiff, being one of the legal heirs of Palanivelu, was entitled to 1/3rd share, as

Palanivelu died leaving behind his three children including the plaintiff and already the wife of Palanivelu died during the year 1989.

-The reason found recited in Exhibit A-1 as though the daughters of Palanivelu were given in marriage with Seervarisai, was sufficient consideration

for their relinquishment, suffers from illegality and such a reason can never be cited as adequate consideration for relinquishment of a lady''s share in

the property over which, they are having legal right.

-The trial Court considering the overall circumstances correctly decided the case, warranting no interference in appeal.

Accordingly, she would pray for the dismissal of the appeal confirming the judgment and decree of the trial Court.

The points for consideration are as under:

Whether there existed a co-parcenary between Palanivelu and Panneerselvam in the wake of the evidence as stood expatiated in Exhibits B-3,

B-4, B-6 to B-10 and if so, whether the sago factory constructed on the suit property should be treated as the co-parcenery property or not?

Whether the suit properties are the self-acquired properties of Palanivelu?

Whether Exhibit A-1 is vitiated in view of fraud and misrepresentation as alleged by the plaintiff and whether the trial Court correctly

appreciated the oral and documentary evidence in holding that Exhibit A-1 was vitiated. If so, whether the plaintiff is entitled to the suit property

and what should be her share and in what capacity, she should be held to be the sharer?

What is the effect of the Hindu Succession (Amendment) Act 2005, so far this case is concerned?

Whether there is any perversity or illegality in the judgment and decree of the trial Court?

All these points are taken together for discussion as they are inter-linked and inter-woven, inter-connected and entwined with each other.

The relationship among the parties is an admitted one. Unarguably and unassailably, as revealed by Exhibit B-3, the partition deed, Palanivelu

obtained certain properties in the partition, which emerged between himself and his brothers and he sold those properties as per Exhibit B-4. It is

the contention of D.W. 1 himself that from out of the sale proceeds under Exhibit B-4, certain properties were purchased by his father Palanivelu;

wherefore its legal consequence and significance should necessarily be seen.

11(i) Exhibit B-5 is the sale deed executed by the said Palanivelu and his brothers in favour of a third party alienating their ancestral property and

all those documents show that there was joint family nucleus among them.

11(ii) The recital in Exhibit B-4 would unambiguously and unequivocally highlight that Palanivelu executed the sale deed on his behalf and on behalf

of his the then minor son-D1 Panneerselvam in favour of a third party alienating the properties, which he got under Exhibit B-3 and whatever sale

proceeds he obtained should be construed only as the joint fund of both. It is therefore crystal clear that even as on the date of emergence of

Exhibit B-4 dated 27.2.1952 and even before that, so to say, from the birth of D1, there existed co-parcenery between Palanivelu and

Panneerselvam and subsequently, whatever property purchased by Palanivelu, the Kartha of such co-parcenary, should as a sequela be construed

as the co-parcenery property of both Palanivelu and Panneerselvam. The said Palanivelu died only during the year 1976. There is no gainsaying of

the fact that the said Palanivelu also took on lease one Manju sago factory, which is a different factory from Velmurugan Sago factory, which is

situated in the suit property and earned income. As such, a clear co-parcenary could be discerned and seen in the facts and circumstances of this

case. Wherefore, the plaintiff is not correct in simply pleading as though all the properties were the self-acquired properties of Palanivelu. In fact,

they should be construed as the co-parcenery properties of Palanivelu and Panneerselvam. When such is the finding based on the documentary as

well as the oral evidence, the law relating to co-parcenery property as well as inheritance should necessarily be seen and applied in the factual

matrix of this case, appropriately, after giving a finding relating to the validity or otherwise of Exhibit A-1, the partition deed. Exhibit A-1 would

contain the following recitals.

Indubitably and indisputably, the contesting defendants pulling no punches would admit that at the time of partition no specific share was given to

the plaintiff or D7, so to say, the daughters of Palanivelu and they were excluded from sharing the suit properties as per Exhibit A-1 on the sole

ground that they were co-parceners but on the ground that they were given with adequate Seervarisai at and around the time of marriage.

At this juncture, it is worthwhile to observe that undeniably and incontrovertibly, Palanivelu himself during his life time conducted the marriages

of both his daughters. I recollect and call up Section 3 of the Hindu Adoptions and Maintenance Act, 1956.

Definitions-In this Act, unless the content otherwise requires-

a)...

b)...

(i)...

(ii) in the case of an unmarried daughter, also the reasonable expenses of and incident to her marriage,

...

(emphasis supplied)

as per which, it is the bounden duty of the Hindu father to give his daughter in marriage by providing her with proper necessaries in commensurate

with his status.

As such, I am at a loss to understand and also there is no knowing of the fact, as to how D1, being the son of Panneerselvam and brother of

the plaintiff, could venture to assert and claim that because the plaintiff was given in marriage with Seervarisai, she should be satisfied with that and

that she was not entitled to any share in the suit properties.

My mind is reminiscent and redolent of the following maxim:

Non videntur qui errant consentire-They who err are not considered as consenting.

Accordingly, if viewed, it is crystal clear that if consensus is found to be lacking in the document, then it should be held to have got vitiated.

No doubt, in this case, the plaintiff specifically pleaded fraud and misrepresentation. She examined herself as P.W. 1. Indisputably, Exhibit A-1

was not attested by the husband of the plaintiff. Simply because, she being a lady, having educational qualification signed the deed; she is not

precluded from contending that she believed her brother''s deceased son Senthilkumar and signed the partition deed as though it was a power of

attorney; even though she earlier signed one other Power of attorney in connection with the running of Velmurugan Sago factory. The trial Court

believing the version of P.W. 1 held that her plea is well-founded. The trial Court, being the Court, which had the opportunity of witnessing the

demeanour of the witnesses held so. Trite is the proposition that the appellate Court should hesitate to interfere with factual findings of trial Court,

unless there is perversity or illegality is involved in such finding.

I would like to concentrate much on the recitals in Exhibit A-1 itself. There is nothing to indicate that subsequent to the marriage, in view of any

sizeable consideration, parted with by D1 in her favour, she released or relinquished her share.

In this connection, the learned counsel for the appellants/defendants by citing the Division Bench judgment of the Karnataka High Court in

Ranganayakamma Vs. K.S. Prakash, would submit that once the parties sign the document, it has to be taken that the parties signed after knowing

the contents.

At this juncture, the evidence of D.W. 2-Rajendran should be considered. Attesting witness is only for the purpose of proving the signature

and not the contents of the documents. In this connection, I would like to refer to the Division Bench judgment of this Court in K.A. Selvanachi

and Subbalakshmi Vs. Dr. S.R. Sekar and S. Kanagambal, . Certain excerpts from it would run thus:

Attestation of a document does not, in our view, entitle any of the parties thereto or any one claiming under them to regard such attestation, per

se, as acceptance on the part of the attestor that the contents of the document are true and that such attestor had knowledge of the same unless

there is evidence before the Court either intrinsic in the document itself or extrinsic to show that the attestor had knowledge of the contents and had

accepted the same as correct.

8.... Attestation therefore, does not imply that the attestor had knowledge of the contents of the document or that the attestor accepts the

correctness of whatever is stated therein.

As such, P.W. 1 herself admits her signature in Exhibit A-1, the partition deed. In such a case, it has to be seen as to how far the evidence of

D.W. 2-Rajendran can be given importance. 20. However, this case is concerned, Rajendran -D.W. 2 would go a step further beyond his

capacity as attesting witness and speak about the alleged fact of the plaintiff having read the contents of the partition deed before signing it.

Whereas P.W. 1-the plaintiff who was admittedly not assisted by any male member at the time of signing Exhibit A-1, would state that she

believed her brother''s deceased son Senthil Kumar''s version (deceased son of D1-Panneerselvam). The deposition of P.W. 1 would

unambiguously and unequivocally point up and show up that only 15 sovereigns of gold jewels were given by her father at the time of her marriage

and not 54 sovereigns as stated by D1 in his written statement. There is no proof to show that 54 sovereigns of gold jewels were given by

Palanivelu to her.

D.W. 2 in his chief examination affidavit would state thus:

however, such a sentence in the chief examination affidavit of the witness on the defendant''s side would smack his partisan attitude. The witness,

who is not a party and claims to be disinterested in the dispute, should not have voluntarily in the chief examination, stated so. He had gone over

board and over reached himself in deposing as such. The very sentence in the chief examination affidavit of D.W. 2 Rajendran one of the attesting

witness to Exhibit A-1 would speak volume about his partisan attitude in supporting blindly the case of the defendants. In the case of defendant

figuring as witness, he could contradict the case of the plaintiff. But, a witness appearing on behalf of the defendants, is having no business to

voluntarily contradict the case of the plaintiff. Answering the cross examination by such witness is entirely different. By uttering out the aforesaid

statement in support of the defendants'' case, he got his evidence minimised to the maxim.

During cross examination, D.W. 2 would admit that at the time of P.W. 1 signing Exhibit A-1, her husband was not present. D.W. 2 also

during cross examination would specifically state that P.W. 1 signed in English and that he did not remember as in what language others have

signed it and that once again projects him in poor light.

As such the stand of P.W. 1 found favour with the trial Court for the reasons to be recorded by her and I do not think that there is any

perversity or illegality in such a finding given by the trial Court.

The male members, who participated in the execution of the partition deed, should have taken care to get the signature of the husband of the

plaintiff also for authenticity sake, but they had not chosen to do so for reasons best known to themselves. In such a case, the finding of the trial

Court in placing reliance on the deposition of P.W. 1 cannot be labeled or dubbed as something untenable. Once Exhibit A-1 is held to be an

invalid document, then as a sequela, it should be held that there was no partition.

The trial Court after thoroughly analysing the entire oral evidence believed the deposition of P.W. 1 that P.W. 1 believing the misrepresentation

of his brother''s son Senthil Kumar, signed the partition deed as though it was a power deed and such a finding warrants no interference.

The lower Court also correctly referred to the deposition of D.W. 1 and extracted the relevant portion of his deposition and highlighted that the

male members in the partition deed, got the signature of P.W. 1 only by way of abundant caution even after knowing that P.W. 1 was having no

share. Such a stand by the defendants is totally antithetical to the law as highlighted by me supra and I need not once again reiterate the same. As

such, Exhibit A-1 emerged even as per D.W. 1 out of misconception and misunderstanding of law relating to the respective rights of the parties

concerning the suit property.

On the defendants'' side, it was argued even before the lower Court as well as before this Court that admittedly there was a power deed

executed by P.W. 1 before the emergence of Exhibit A-1, the partition deed; there was no probability of P.W. 1 assuming for the second time, as

though she was signing a power of attorney. Such an argument false foul of the common or garden principle that for different purposes different

power of attorneys could emerge and in day to day life we come across in the legal field such sort of various power of attorneys emerging at the

instance of one and the same person. Hence the probability, which was put forth on the side of the defendants fails to carry conviction with this

Court and it does not hold water.

The very fact that the male members of the co-parcenery started, after the death of Palanivelu, the Velmurugan Sago factory as described in

the B scheduled, would automatically enable the plaintiff to lay claim over it because, the undivided co-parcenery properties were unassailably and

unarguably income generating properties and further more, the participation of P.W. 1 in executing the power deed admittedly in favour of

Senthilkumar earlier, would also demonstrate and accentuate that she was having interest in the sago factory and the defendants now cannot try to

segregate the B scheduled property from the purview of partition.

The next phase of analysis is as to what law should be applied for partition. As held supra, the suit properties are the co-parcenery properties

and if the law which existed as on the date of death of Palanivelu, is applied, then notionally, the properties should be divided into two parts and

one should be allotted to D1-Panneerselvam and Another should have been allotted to the widow as well as the children of Palanivelu, so to say,

the half share of Palanivelu, should be allotted to the widow, the son and two daughters at the rate of 1/4th share each out of the half share.

Consequent upon the death of the widow of Palanivelu during the year 1989, virtually her share also would revert back to her children, viz., his son

and two daughters. As such, the son and the two daughters of Palanivelu would be entitled to 1/3rd share each in the half share of Palanivelu; but

this Court has to consider the application of Hindu Succession Act, 1956 as amended by 2005 Act.

In this connection, I would like to refer to the decision of the Hon''ble Apex Court in Ganduri Koteshwaramma and Another Vs. Chakiri

Yanadi and Another, and certain excerpts from it would run thus:

The new Section 6 provides for parity of rights in the co-parcenary property among male and female members of a joint Hindu family on and

from 9.9.2005. The legislature has now conferred substantive right in favour of the daughters. According to the new Section 6, the daughter of a

co-parcener becomes a co-parcener by birth in her own rights and liabilities in the same manner as the son. The declaration in Section 6 that the

daughter of the co-parcener shall have same rights and liabilities in the co-parcenary property as she would have been a son in unambiguous and

unequivocal. Thus on and from 9.9.2005, the daughter is entitled to a share in the ancestral property and is a co-parcener as if she had been a son.

The right accrued to a daughter in the property of a joint Hindu family governed by the Mitakshara law, by virtue of the 2005 Amendment Act,

is absolute, except in the circumstances provided in the proviso appended to sub-section (1) of Section 6. The excepted categories to which new

Section 6 of the 1956 Act is not applicable are two, namely, (i) where the disposition or alienation including any partition has taken place before

20.12.2004; and (ii) where testamentary disposition of property has been made before 20.12.2004. Sub section (5) of Section 6 leaves no room

for doubt as it provides that this section shall not apply to the partition which has been effected before 20.12.2004. For the purposes of new

Section 6 it is explained that ""partition"" means any partition made by execution of a deed of partition duly registered under the Registration Act,

1908 or partition effected by a decree of a Court. In light of a clear provision contained in the Explanation appended to sub-section (5) of Section

6, for determining the non-applicability of the section, what is relevant is to find out whether the partition has been effected before 20.12.2004 by

deed of partition duly registered under the Registration Act, 1908 or by a decree of a Court. In the backdrop of the above legal position with

reference to Section 6 brought in the 1956 Act by the 2005 Amendment Act, the question that we have to answer is as to whether the preliminary

decree passed by the trial Court on 19.3.1999 and amended on 27.9.2003 deprives the appellants of the benefits of the 2005 Amendment Act

although final decree for partition has not yet been passed.

The legal position is settled that partition of a joint Hindu family can be effected by various modes, inter alia, two of these modes are (one) by a

registered instrument of a partition and (two) by a decree of the Court. In the present case, admittedly, the partition has not been effected before

20.12.2004 either by a registered instrument of partition or by a decree of the Court. The only stage that has reached in the suit for partition filed

by Respondent 1 is the determination of shares vide preliminary decree dated 19.3.1999 which came to be amended on 27.9.2003 and the receipt

of the report of the Commissioner.

A preliminary decree determines the rights and interests of the parties. The suit for partition is not disposed of by passing of the preliminary

decree. It is by a final decree that the immovable property of joint Hindu family is partitioned by metes and bounds. After the passing of the

preliminary decree, the suit continues until the final decree is passed. If in the interregnum i.e. after passing of the preliminary decree and before the

final decree is passed, the events and supervening circumstances occur necessitating change in shares, there is no impediment for the Court to

amend the preliminary decree or pass another preliminary decree re-determining the rights and interests of the parties having regard to the changed

situation,

A mere running of the eye over the aforesaid excerpts including the whole judgment would unambiguously and unequivocally highlight the fact that,

in a pending partition suit, if final decree has not been passed then certainly, the Amendment Act 2005 amending the Hindu Succession Act, 1956

would be applicable.

My discussion supra would highlight that the partition deed Exhibit A-1 is found vitiated and as such, it is deemed to be not in existence at all.

In such a case, there is no embargo for applying the Hindu succession Act, 1956 as amended by 2005 Act.

Accordingly, if viewed, it is crystal clear that the two daughters of Palanivelu happened to be the deemed co-parceners. In such a case,

consequent upon the death of Palanivelu, it is to be taken that there were as many as three co-parceners, viz., his son Panneerselvam, daughters-

Mohana and Rajalakshmi. Notion-ally, if partition is effected, there should have been four shares including the share of Palanivelu; and that 1/4th

share of Palanivelu as per the judgment of the Hon''ble Apex Court in Yudhishter Vs. Ashok Kumar, should be divided into four shares and one

such share should be allotted notionally to the widow of Palanivelu and 1/4th share each should be allotted in favour of his son and two daughters

invoking Section 8 read with the Schedule under Class I heirs of the Hindu Succession Act.

Now then, it is an admitted factual point that the said widow without executing any Will or settlement died during the year 1989. In such a

case, in the entire properties, the son and two daughters are deemed to be having 1/3rd share each. The trial Court even though in the preliminary

decree arrived at the conclusion that each of the three children of the deceased Palanivelu is entitled to 1/3rd share, yet the ratiocination adhered to

in passing such a preliminary decree, was not correct; but the ultimate conclusion in passing the preliminary decree is to be upheld.

As such, the aforesaid points are decided in favour of the plaintiff and as against the defendants.

Point No. 1 is decided to the effect that there existed a co-parcenery between Palanivelu and Panneerselvam in the wake of the evidence as

found expatiated in Exhibits B-3, B-4, B-6 to B-10 and that the sago factory constructed in the suit property should be treated as the co-

parcenery property.

Point No. 2 is decided to the effect that the suit properties are the self-acquired properties of Palanivelu.

Point No. 3 is decided to the effect that the partition as contained in Exhibit A-1 stood vitiated in view of fraud, misrepresentation as alleged by the

plaintiff and the trial Court correctly appreciated the oral and documentary evidence in holding that Exhibit A-1 was vitiated. The plaintiff is entitled

to the suit property both in the capacity of the co-parcener and legal heir, to an extent of 1/3rd share.

Point No. 4 is decided to the effect that there is no perversity or illegality in the judgment and decree of the trial Court in arriving at the ultimate

conclusion.

In the result, the judgment and decree of the ultimate preliminary decree passed by the trial Court is confirmed and the appeal is dismissed.

However, there shall be no order as to costs. Consequently, the connected miscellaneous petition is closed.