Judgment :- (Prayer: This Appeal has been filed against the decree and Judgment dated 7.10.1987 passed in O.S.No.333 of 1983 on the file of the Subordinate Court, Dharapuram.) This Appeal has been preferred against the Decree and Judgment in O.S.No.333/1983 on the file of the Subordinate Court, Dharapuram. 2. The averments in the plaint in brief are as follows: 2(i) Suit is for maintenance and partition. The first plaintiff is the wife of the first Defendant-Palaniswamy and the second plaintiff is their son. The first Defendant had married the first plaintiff as per the Hindu Rights and Customs. The first plaintiff and the first Defendant were living as members of joint family with second Defendant. The father of the first plaintiff presented to the plaintiff 40 severigns of gold jewels at the time of marriage. Few months after the marriage the first Defendant pledged the jewels for installing pumpsets electric motor. Thereafter, the first Defendant began to ill-treat the first plaintiff. The first Defendant sent the first plaintiff to her parent' house in 1965. Thereafter, she was under the care and protection of her father. 2(ii) The first Defendant sent a notice and filed O.P.No.48/68 for judicial separation, which was allowed. The first plaintiff preferred an Appeal, which is pending. The first plaintiff filed a suit for maintenance in O.S.No.479/1971 on the file of the Sub-Court, Erode, against the Defendants 1 and 2. In 1970, the first Defendant married one Palaniammal. The first plaintiff gave a complaint in C.C.No.384/1970 on the file of the Sub-Divisional Magistrate, Erode, against the Defendants 1 and 2. The Defendants 1 and 2 were found guilty and were punished. The maintenance suit was decreed on 9.7.1974 as against the first Defendant awarding Rs.20 per month as maintenance and it was held that the suit properties are not joint family properties. The first plaintiff filed an Appeal on the file of the high Court, Madras. 2(iii) A compromise was effected subsequently and the first plaintiff was taken back. It was agreed that the second Defendant to treat the entire family properties as joint family properties. The second Defendant had thrown his separate properties in to the joint family hatch-pot. Out of the joint family income, the Defendants were doing business. They have deposited some amounts with Defendants 3 to 5. 2(iv) A female child was born during the year 1976 and died immediately. The second Defendant had thrown his separate properties in to the joint family hatch-pot. Out of the joint family income, the Defendants were doing business. They have deposited some amounts with Defendants 3 to 5. 2(iv) A female child was born during the year 1976 and died immediately. In 1978, the second child was born about 8 months before in the month of Aani. When the first plaintiff wanted to put the second plaintiff in the school the first Defendant insisted that she must bring some amount from her father. Misunderstanding arose and the first Defendant again started ill treating the plaintiff and finally drove the plaintiff out of the house. The first plaintiff tried her best through the punchayatdars for dividing the share of the minor plaintiff and also for the maintenance. The second Defendant is entitled to ¼ the share in the suit properties. 2(v) There is an ancestral house at Akilandapuram. From the suit properties and from the business the Defendant will get an annual income of Rs.36,000/-. The first plaintiff is entitled to maintenance at the rate of Rs.500/- per month and Rs.200/- per annum for cloth and Rs.25/- per month for house rent. Hence the suit. 3. The second Defendant filed a written statement contending that the plaintiffs have no cause of action to file the suit and the suit properties are self acquired properties and separate properties of the second Defendant. The first plaintiff and the first Defendant lived separately from 1966 onwards and there is no joint family between the Defendants and the plaintiffs and they are not doing any business jointly. In the suit properties, the first Defendant has no right. The second plaintiff has no right to claim partition. 4. The first Defendant in his written statement would contend that the property is in the name of the second Defendant. This Defendant has no right in the suit properties and also over the property purchased by the second Defendant on 13.04.1959. This Defendant is not living with the second Defendant as a joint family member. The first plaintiff agree to live with this Defendant along with his second wife. During that period the second plaintiff was born. The first plaintiff demanded this Defendant to get sum share in the property of the second Defendant to her son. This Defendant is not living with the second Defendant as a joint family member. The first plaintiff agree to live with this Defendant along with his second wife. During that period the second plaintiff was born. The first plaintiff demanded this Defendant to get sum share in the property of the second Defendant to her son. As this Defendant was not willing, the first plaintiff left the house to her parent's house along with the second plaintiff. The allegation that this Defendant asked the first plaintiff to get some amount from her father is false. The suit is barred by O.S.No.479/1971 regarding the claim of maintenance by the first plaintiff. This Defendant has got right only in the ancestral property of Akilandapuram house. 5. The fourth Defendant filed his written statement contending that the first Defendant has deposited Rs.6,200/- on 10.12.1979 with this Defendant for a period of 63 months. This Defendant is not concerned with the previous suits among the parties. This Defendant has no knowledge whether this amount is the joint family fund or not. This Defendant is not a necessary party to the suit. 6. The Defendants 3 and 5 remain exparte. On the above pleadings the trial Court has framed ten issues and on the basis of the evidence available, both oral and documentary, has come to a conclusion that the first plaintiff is entitled to a sum of Rs.100/- towards maintenance and house rent per month and Rs.75 per year for clothing till her life time and passed a preliminary Decree for partition of ¼ share of the second plaintiff in item No.3 and also credited a charge in respect of Item No.3 in respect of first defendant's ¼ share towards maintenance awarded in favour of the first plaintiff. Aggrieved by the findings of the trial Court the plaintiffs have preferred this Appeal. 7. Now the point for determination in this Appeal is whether the Decree and Judgment in O.S.No.333/1983 on the file of the Sub-Court, Dharapuram, is liable to be set aside for the reasons stated in the memorandum of Appeal? 8. The Point:- 8(i) Admittedly the first plaintiff is the wife of the first Defendant. The learned counsel appearing for the appellant would contend that the maintenance ordered for the first plaintiff is very meagre, as against the claim of Rs.500/- per month. 8. The Point:- 8(i) Admittedly the first plaintiff is the wife of the first Defendant. The learned counsel appearing for the appellant would contend that the maintenance ordered for the first plaintiff is very meagre, as against the claim of Rs.500/- per month. Before awarding maintenance the foremost point to be decided is whether the first Defendant is having sufficient income to maintain the first plaintiff besides maintaining him. Except the ipsi-dixit of the first plaintiff there is no document produced on behalf of the plaintiffs to show that the first Defendant was getting an income of Rs.36,000/-. On the other hand the first Defendant as D.W.1 would admit in the cross-examination that his monthly income is Rs.200/-. Basing on the admitted income of D.W.1 the learned trial judge has awarded Rs.100/- towards maintenance and house rent and Rs.75 per year for cloth. So there is no evidence in favour of the plaintiff for enhancing the maintenance amount. 8(ii) Admittedly the joint family of the first Defendant would consist of second plaintiff, first Defendant and second Defendant. The plaint schedule item No.1 & 2 have been purchased by the second Defendant under Ex.B.7-sale deed in the year 1959. Even though the plaintiff would contend that the said properties item No.1 & 2 are joint family properties there is absolutely no evidence to substantiate the said contention. Plaint schedule item No.3 is an ancestral house in Akilandapuram. Apart from this property there is no other property belonging to the joint family to fetch income. Since there is no evidence on record to show that under Ex.B.7 plaint item No.1 & 2 properties were purchased out of joint family income. The trial Court has rightly held that item No.1 & 2 are not joint family properties but exclusively belongs to the second Defendant under Ex.B.7-sale deed. As far as plaint schedule item No.3 is concerned the trial Court has allotted 1/4th share. It is admitted by both parties that after filing the Appeal the second Defendant is also now no-more. So in the joint family property i.e., in item No.3, first Defendant, second Defendant and the second plaintiff are each entitled to 1/3 share. After the death of the second Defendant his 1/3 share in item No.3 will devolve equally on the first Defendant and the second plaintiff (1/3 x 1/2 + 1/3 = 1/2). So in the joint family property i.e., in item No.3, first Defendant, second Defendant and the second plaintiff are each entitled to 1/3 share. After the death of the second Defendant his 1/3 share in item No.3 will devolve equally on the first Defendant and the second plaintiff (1/3 x 1/2 + 1/3 = 1/2). So the first Defendant will be entitled 1/2 share and the second plaintiff( (D1's son) will be entitled to 1/2 share in the plaint item No.3. 8(iii) Even though there is a prayer in the plaint the judgment is silent in respect of mean profits. The question of mean profits is relegated to a separate proceedings under Order 20 Rule 12 of CPC. The fourth Defendant in his written statement has admitted that the first Defendant has deposited Rs.6,200/- on 10.12.1979 with the fourth Defendant-State Bank of India, Kangeyam, for a period of 63 months. So the second plaintiff is also entitled to ½ share in the above said deposited amount, with accrued interest. 8(iv) The learned counsel appearing for the appellant would file a memo stating that in respect of Item No.1 & 2 properties the second Defendant-Kolandasami Gounder had executed a will dated 11.09.1992 bequeathing some of the properties in favour of the second Defendant, and relying on the decision reported in 1999(2) MLJ 453 (V.Rajavelu Udayar (died) and others vs. Chandrasekaran and another) and contended that the plaintiff may be given liberty to agitate the same before the trial Court in the final Decree proceedings. In the above said case the Will was produced as an additional document under CMP.No.18474/1998, but the said CMP was dismissed with the following observations" "Hence this application is rejected and liberty is given to the petitioners to produce the Will in the final Decree proceedings to claim the share of Rajavelu Udayar and it would be open to the parties to prove or challenge the Will of Rajavelu Udayar and the court below shall decide the truth or genuineness of the Will and grant consequential relief according to law." So following the above said dictum the plaintiffs are given liberty to produce the Will in the final Decree proceedings to claim the second plaintiff's share if any in item No.1 & 2 of the plaint schedule properties after proving the same to get consequential relief according to law. In other respects the Judgment of the trial Court is confirmed. Point is answered accordingly. 9. In fine, the Appeal is partly allowed and the plaintiffs are entitled to a preliminary Decree for partition of one half share in plaint schedule item No.3 property and also in the amount available in deposit with the fourth Defendant-Bank. The question of mean profits is relegated to a separate proceedings under Order 20 Rule 12 of CPC. The learned counsel appearing for the appellants filed a memo stating that in respect of plaint schedule item No.1 & 2 properties, D2-Kulandasamy Gounder had executed a Will dated 11.09.1992 bequeathing a portion of the properties in plaint schedule item No.1 & 2 properties. If so the plaintiff can file the same before the trial Court at the time of final Decree proceedings for getting necessary relief under the alleged Will. In other respects the decree and Judgment passed in O.S.No.333/83 on the file of the Sub-Court, Dharapuram, is confirmed. Taking into consideration of the close relationship of the parties, there is no order as to costs.