ORDER T.N. Singaravelu, J. 1. The plaintiffs in the suit are the appellants herein. 2. The plaintiffs filed the suit for partition and separate possession of their 3/4th share in the suit properties with the following averments. The suit properties originally belonged to four brothers Thangaiyan, Ramaswami, Marudhai and Natesan (First defendant). The properties were acquired by their father Sannasi. Marudhai had no issues and he had willed away his 1/4th share to his brother's daughter Subbalakshmi. Thangaiyan died without issues. On 12.7.1974, the first defendant executed a settlement deed in favour of the plaintiffs, who are his sister's sons, in respect of his 5/8th share. The settlement deed was duly accepted by the done. Later, on 21.10.1974, Ramaswami and Subbalakshmi 'as one party and the first defendant and the plaintiffs as the other party entered into a partition deed and the properties covered by the settlement deed were allotted to the share of the plaintiffs and the first defendant. Under this partition dated 21.10.1974, the first defendant retained interest for enjoyment till his lifetime and after his lifetime, the property should go to the plaintiffs absolutely. Now, the first defendant settlor and the plaintiff-settle have fallen out on account of failure of some marriage negotiations. Therefore, the plaintiffs have filed the suit for partition of their 3/4th share and the first defendant is entitled to 1/4th share for a life estate. Defendants 2 to 6 are the alie nees of the suit properties from the first defendant during the pendency of the suit and therefore they are impleaded. 3. The first defendant--settler filed a written statement as follows:--The first defendant did not execute the settlement deed dated 12.7.1974 voluntarily or in a sound state of mind. He is addicted to alcohol and the settlement deed was obtained when he was under the influence of alcohol. Similarly, the partition deed was also obtained from the first defendant by the plaintiffs when he was in a state of intoxication. He never settled the properties of the plaintiffs and the settlement deed is not valid since it was in respect of an undivided interest in the family properties. The gift was also not accepted and possession was never handed over. 4. The other defendants filed a written statement contending that they are purchasers of certain items of properties bona fide and for consideration. The gift was also not accepted and possession was never handed over. 4. The other defendants filed a written statement contending that they are purchasers of certain items of properties bona fide and for consideration. In other respects, they supported the case of the first defendant. 5. The trial Court framed various issues and recorded evidence on both sides. The learned Subordinate Judge found that the settlement deed dated 12.7.1974 was not voluntarily executed by the first defendant and that it was not acted upon. The partition deed dated 21.10.1974 between the first defendant and the plaintiffs was also held to be vitiated and that the first defendant has been over--reached. Consequently the trial Court held that the plaintiffs are not entitled to partition of the suit properties and the suit was dismissed with costs. The plaintiffs have now come on appeal. 6. The following geneology is reproduced for appreciation of the dispute between the parties. GENEOLOGY _________ Sannasi _________________________________________________________________ | | | | | | | | | | | | | | | Thangaiyan Ramaswami Marudhai Natesan Agniammal | (D-1) | | Died on | | 21.6.1981 | Subbalakshmi Kanagambal | (R-8) | | _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ | | | | | | | | | Kandaswami Shanmugham Kulandalsami Pandurar Pandurar Pandurar (First (Second (Third Plaintiff) Plaintiff) Plaintiff) 7. The relationship between the parties as found in the geneology is not disputed. According to the plaintiffs, who are the sister's sons of the first defendant--settle, the latter executed the settlement deed Ex.A-1 in their favour in respect of 5/8th share. The first defendant contends that this settlement deed who obtained from his while lie was in a state of drunkeaness and that he was not aware of the same. The evidence in respect of the settlement deed Ex.A-1 is as follow: P.W.I in the first plaintiff and the other two plaintiffs are his younger brothers. He has given evidence that his maternal uncle (first defendant) has gifted his 3/8th share in the properties their favour with certain restriction which I will deal a bit later. The evidence in respect of the settlement deed Ex.A-1 is as follow: P.W.I in the first plaintiff and the other two plaintiffs are his younger brothers. He has given evidence that his maternal uncle (first defendant) has gifted his 3/8th share in the properties their favour with certain restriction which I will deal a bit later. According to P.W. 1 the first defendant who was living with the brother of his, Ramaswami, came and lived with the plaintiffs and that he voluntarily executed the settlement deed Ex.A-1 on account of love and affection towards his nephews. He has stated that the plaintiffs had taken possession of the properties in pursuance of the settlement deed. P.W.2 is the attest or of Ex.A-1 and he is a resident of the same hamlet as the first defendant. According to P.W.2 the first defendant directed the document writer P.W.5 to write a settlement deed Ex.A-1 and that P.W.2 attested the same in the presence of the settles who saw him attesting. P.W.2 is also one of the identifying witnesses before the Sub-Registrar at the time of registration. He further added that the first defendant is a literate and that he went through the document and executed the same voluntarily. P.W.2 is a close relation of the first defendant and was aged more than 60 on the date of Ex.A-1 and then he is competent witness to at test the document executed by the first defendant. 8. P.W.3 is the scribe and he is a document writer at Golden Rock Sub Registrar's Office. He has stated, that the first defendant approached him and asked him to write the settlement deed Ex.A-1 and gave the recitals for the same. According to him, the first defendant also gave the particulars of the properties and that the first defendant executed the deed voluntarily. This witness has not only written the settlement deed Ex.A-1 but also the subsequent partition deed Ex.A-2. He has stoutly denied the suggestion that the first defendant signed the document in a drunken mood. Nothing tangible was elicited in the cross--examination of P.W.1 and 3 to discredit their evidence. 9. The background of the first defendant at the time of the execution of the document is also relevant. As already stated, the first defendant has no issues and his wife was living away from him. Nothing tangible was elicited in the cross--examination of P.W.1 and 3 to discredit their evidence. 9. The background of the first defendant at the time of the execution of the document is also relevant. As already stated, the first defendant has no issues and his wife was living away from him. He was for some time living and messing with his brother Ramaswami and later lived with his sister's sons. Therefore, there is nothing unnatural about this gift under Ex.A-1. He has stated therein that he was executing the settlement deed on account of love and affection towards this sister's sons. It is not as if the donor completely divested himself of all his rights in the properties. On the other hand, he was careful to protect his own interest during his lifetime. In particular, he has stated that the three settles and himself should enjoy the properties in common and that none of them should alienate the properties individually. In case there was only a need for alienation, all the four should join and execute the same. He further added therein that he as giver has right to enjoy the properties till his lifetime and only thereafter, the settles will get absolute right. Therefore it was a carefully written document wherein the settler had taken care to provide the right and enjoyment for himself till his lifetime. Further, the settlement deed Ex.A-1 was not written in a hurry. In fact, the settler first defendant executed another document Ex.A-2 three months after Ex.A-1 under which he divided the properties from his brother Ramaswami and his daughter Subbalakshmi. Ex.A-2 is styled as a partition deed and it sets out the family history and all the prior transactions in the family. In particular, the settler first defendant reiterated the execution of Ex.A-2 settlement deed dated 12.7.1974 and reaffirmed it. The reason for entering late the partition deed. is also mentioned therein and it is recited that there was a Panchayat under which the two branches divided the properties by metes and bounds. The properties allotted to the two branches are clearly mentioned in elaborate detail in this document Ex.A-1. Thus the settlement deed Ex.A-1 was confirmed by the settler under this partition deed Ex.A-2. The execution of this partition deed has been spoken to by the scribe P.W. 3 and the attest or P.W. 4. The properties allotted to the two branches are clearly mentioned in elaborate detail in this document Ex.A-1. Thus the settlement deed Ex.A-1 was confirmed by the settler under this partition deed Ex.A-2. The execution of this partition deed has been spoken to by the scribe P.W. 3 and the attest or P.W. 4. P.W. 4 is a Physical Instructor in a local school and he knows the parties. He also belongs to the community and he has stated that there were disputes and therefore between the two branches regarding the enjoyment and therefore this partition was necessitated. P.W. 4 has denied that the first defendant executed the same in a drunken mood. It is noticed from the evidence of P.W.4 that he is a next door neighbour of the first defendant and also resides in the same village. I have already referred to the evidence of P.W.3 who is also the scribe of Ex.A-2. 10. The trial court was influenced by the fact that the first defendant was in the habit of taking liquor and therefore he must have executed this document in a drunken mood. There is no factual foundation for this plea and even if it is true, taking liquor will not vitiate the document. Of course, the settler has given evidence as D.W.I and has stated that he was taken to Sub Registrar's Office by the plaintiffs and that he was made to sign the documents Ex.A-1 and A-2. These two documents were not written simultaneously but they were executed at different points of time. It was elicited from D.W. 1 that he was living and messing with the plaintiffs for about four months prior to the execution of Ex.A-1. Therefore, his present version that he was in drunken mood at the time of execution of these two documents cannot at all be accepted. He examined another witness D.W.2 to state that the first defendant is in the habit of drinking, but the evidence of D.W.2 is neither here nor there. 11. The next question is, whether the settlement deed Ex.A-1 was accepted by the done and acted upon. There is abundant intrinsic evidence on record to show that it was duly accepted. I have already set out that under Ex.A-1 the settler reserved a life interest for himself and that none of them should alienate the properties without reference to the other. There is abundant intrinsic evidence on record to show that it was duly accepted. I have already set out that under Ex.A-1 the settler reserved a life interest for himself and that none of them should alienate the properties without reference to the other. This settlement deed was duly handed over to the donees and they have produced the same into court. By virtue of the settlement, the plaintiffs are in possession of the properties, and the names of the plaintiffs were also included in the joint patta-vide Ex.A-6 and A-7. After the transfer of patta in the joint names, the plaintiffs also paid kist under Ex.A-8 and A-11 and A-14. Ex.A-15 is the house-tax receipt for the house mentioned in the settlement deed. Therefore, the settlement deed was duly acted upon and given effect to. Thus, the gift was complete and there is no reason to doubt the same. 12. Learned Counsel for the respondents would strenuously contend that the settlement deed Ex.A-1 recites that the properties settled were undivided 3/8th share and therefore it is not valid. It was also argued that the gift of an undivided share is not sustainable and that the properties were not divided by metes and bounds. I am unable to agree with this argument in the face of the printed copy of the judgment in O.S. No. 240 of 1962 on the file of the District Munsif, Tiruchirapalli, marked as Ex.A-17. Ex.A-17 discloses that two of the four brothers filed a suit against the other two brothers for partition of their joint family properties in the year 1962. A preliminary decree was passed on 8.6.1963 declaring that each of the four brothers will be entitled to 1/4th share of the properties mentioned therein. Therefore, a division had taken place through Court, though the parties did not choose to have the properties divided by metes and bounds through Court. But then, we have the evidence under Ex.A-2 whereby two surviving branches of the family entered into a registered partition deed in 1974. Therefore, it cannot be said that an undivided share was gifted under Ex.A-1. 13. Learned Counsel for the appellants/plaintiffs placed before me the following decision in support of the appellant's case. But then, we have the evidence under Ex.A-2 whereby two surviving branches of the family entered into a registered partition deed in 1974. Therefore, it cannot be said that an undivided share was gifted under Ex.A-1. 13. Learned Counsel for the appellants/plaintiffs placed before me the following decision in support of the appellant's case. In Bhagwati Prasad Sah v. Dulhin Rameshwari Kuer it has been laid down that where co-parcerners separated; themselves from the other members of the family and have their share in the joint family partitioned off, there is no presumption that the rest of the co-parcerners continued to be joint. It is a question of fact to be determined in each case upon the evidence relating to the intention of the parties. The next case cited is reported in Addagada Raghavamma v. Addagada Chenchamma wherein it is held that it is settled law that a member of a joint Hindu family can bring about his separation in status by a definite and unequivocal and unilateral declaration of his intention to separate himself from the family and enjoy his share in severally. Therefore, once the declaration is expressed and brought to the knowledge of the person affected, it relates back to the date of declaration or the expression of intention to separate. In the case before us, there was a suit in Court in O.S. No. 240 of 1962 for partition and the decree was passed. This clearly shows that there was a severance in status and the members of the family are entitled to deal with the properties in their own way. 14. Learned Counsel for the appellants then drew my attention to a ruling reported in Kalyani v. Narayanan wherein it is held that in order to constitute a partition all that is necessary is a definite and unequivocal indication of intention by a member of a joint family to separate himself from the family, and that such an unequivocal intention to separate brings about disruption of joint family status and such partition, irrespective of whether it is accompanied or followed by actual division of properties by metes and bounds, covers both a division of right and division of property. The Supreme Court has observed that physical and actual division of property by notes and bounds follows from disruption of status and would be termed partition in a broader sense. The Supreme Court has observed that physical and actual division of property by notes and bounds follows from disruption of status and would be termed partition in a broader sense. Therefore, on the date of the settlement deed Ex.A-1 the settler first defendant was a divided co-parcerners and he had every right to deal with the property. As already pointed out, the settlement deed was affirmed and reaffirmed by a subsequent partition deed Ex. A-2, under which two surviving members have divided the properties by metes and bounds through a Panchayat. For all these reasons I am of the view that the conclusions of the trial Court are totally unsustainable on the evidence on the record. 15. Now, what is the share to which the appellants-plaintiffs-settles are entitled to? Under the settlement deed, the settler retained an 1/4th share interest for himself for life giving the remainder to the plaintiffs. It is common ground therefore that the first defendant--settler is now dead and therefore, there is no impediment in law to pass a decree in favour of the plaintiffs for the whole of the property mentioned in the settlement deed Ex.A-1. 16. Learned Counsel for the respondents would argue that in any event, a second suit for partition does not lie and therefore, the present suit should be dismissed. I have carefully considered this argument in the light of the facts of the case before us. No doubt, there was a prior suit for partition as revealed by Ex.A-17, but no final decree was passed in that suit. The parties appear to have entered into some arrangement among themselves and were enjoying the properties. But then, subsequent events have intervened viz., the first defendant who had an 1/4th share under the decree in O.S. No. 248 of 1962 has disposed of the share by the settlement deed Ex.A-1 and also entered into a family arrangement of partition with the surviving members. The plaintiff's herein were not parties in the prior suit. Further, the settler himself has now gone back on the settlement deed Ex.A-1 and figured as first defendant in this suit. Therefore, the only remedy of the plaintiffs is to file a suit for carving out their 3/4th share in the properties since on the date of suit, the first defendant-settler was alive. Further, the settler himself has now gone back on the settlement deed Ex.A-1 and figured as first defendant in this suit. Therefore, the only remedy of the plaintiffs is to file a suit for carving out their 3/4th share in the properties since on the date of suit, the first defendant-settler was alive. Now that the first defendant died subsequent to the suit, for the properties mentioned in the plaint, the plaintiffs are entitled to a decree for the entire properties mentioned in the plaint. In such a case, the relief has to be moulded according to the subsequent events and there is no need for driving the party to further litigation on a mere technical plea. In this connection I may also state that the alienees who are said to have purchased certain items of properties from the first defendant, have not given evidence and they have not even filed their sale deeds. Further, the other defendants viz., defendants 2 to 6 appear to have purchased small house sites from the first defendant; though they have filed written statement that they are bona fide purchasers for value, they did not choose to give any evidence thereby indicating that they are not bona fide purchasers for value. 17. The result is, the appeal will be allowed, the judgment and decree of the trial Court will be set aside and there will be a decree in favour of the plaintiffs declaring their right to the entire suit properties now that the 1/4th sharer viz., first defendant-settler is no more. On payment of deficit court fee both in the plaint and in the appeal memo the office will draft the decree. Each party to bear his own costs. For payment of deficit court fee call on 21.4.86.